RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           15 JUNE 2004                   
	DOCKET NUMBER:   AR2003096854

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Karl F. Schneider		Deputy Assistant   Secretary (Army Review Boards)	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred Eichorn		Chairperson	
	Mr. Larry Bergquist		Member	
	Ms. Eloise Prendergast		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests physical disability retirement with a disability rating of 100 percent.

2.  The applicant states that given the seriousness of his disabilities, which are rated at 100 percent [by the Department of Veterans Affairs], he should have been medically retired with a 100 percent rating rather than separated with severance pay.  He was going to be a career officer.  He gave the Army the best years of his life.  He was discharged on 25 August 2000 with a 20 percent disability rating.  He filed a claim with the Department of Veterans Affairs (VA), which awarded him a 90 percent disability rating.  He has since been awarded a 100 percent disability rating by the VA.  

3.  He was involved in two motor vehicle accidents, one of which was nearly fatal. He had severe back injuries, and underwent an evaluation by a medical board.  He was rated under VA code 5003 only (arthritis, degenerative (hypertrophic or osteoarthritis)); however, the VA rated him for various disabilities under a variety of VA codes.  He feels that an injustice has been done to him, and that he should receive a 100 percent disability rating.  

4.  The applicant provides a copy of his 25 August 2000 DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his Officer Record Brief, a copy of Medical Evaluation Board (MEB) proceedings, a copy of Physical Evaluation Board (PEB) proceedings, copies of three VA rating decisions, a copy of his 30 August 1999 report of medical examination and report of medical history, with a copy of a chronological record of medical care, and a copy of his May 2000 leave and earnings statement.

CONSIDERATION OF EVIDENCE: 

1.  The applicant was appointed a second lieutenant in the Regular Army on      20 April 1992.  His officer record brief shows he trained as an infantry officer and later as a quartermaster officer.  Military courses that he completed included ranger, air assault, TOW trainer, jumpmaster, and combined logistics officer advanced course.  He was promoted to captain on 1 July 1994.      

2.  A review of the applicant's officer evaluation reports shows that his rating officials considered him an outstanding officer.  His report for the 12 month period ending on 30 September 1999, while serving as a company commander of a recruiting battalion in Beckley, West Virginia, contained the remark by his rater concerning his accomplishments, "This was accomplished in spite of a near fatal auto accident while in the performance of his duties and at no fault of his own," and, "If his physical condition permits, select for Major and resident CGSC."   The latter remark was included in the report ending on 11 February 2000 by the same rater, his battalion commander.     

3.  A 13 May 1998 physical profile report shows that the applicant had a permanent profile serial of 1 1 2 1 1 1 because of chronic ankle and knee pain, but that he was fully capable of all duties in his current and next higher grade.  

4.  A 23 January 1999 physical profile report shows that the applicant had a permanent profile serial of 1 3 3 1 1 1 because of degenerative discs to his lower back.

5.  A 23 February 1999 DA Form 2173 (Statement of Medical Examination and Duty Status) shows that the applicant was involved in an automobile accident when a vehicle turned in front of him and he hit it.  That report indicates that he sustained multiple contusions.  He was treated [at a hospital] and released.  His injuries were in line of duty.

6.  A 30 August 1999 report of medical examination depicts the applicant's various medical conditions, to include bilateral weakness in arms/forearms, degenerative joint disease to his back, knees, and ankles, and bilateral ankle pain.  That report indicates that he walked using a cane.  His physical profile serial was 1 3 3 1 1 1.  In the report of medical history that he furnished for the examination, the applicant stated that his health was poor.  He provided a chronological record of medical care summarizing his injuries dating from October 1992.  That record shows that in October 1992 his knees were swollen twice the normal size after completion of ranger training; in January 1995, he injured his left ankle while performing in an airborne operation, tearing the left Achilles tendon; in October 1995, he had a bad landing during an airborne operation, sustaining three broken toes on his right foot; in July 1995, he broke his right hand; in April 1998, his shoulders, knees, and ankle hurt, and he was diagnosed with degenerative joint disease in both shoulders, knees, and ankles and a collapsed arch on his right foot; in January 1999, he was in an automobile accident, sustaining back, fingers, neck, and shoulder injuries; again in January 1999, he had an avulsion fracture to his left wrist from an automobile accident; in January 1999, his left knee was swollen and he could not bend it. 

7.  In November 1999 the applicant underwent an evaluation at the Walter Reed Army Medical Center previous to an MEB.  The MEB summary shows that his systems were reviewed and were remarkable for swollen, painful joints; frequent and severe headaches; cramps in his legs; broken bones; bursitis; painful or trick shoulder/elbow; recurrent back pain; foot trouble; and trouble sleeping.  

a.  Physical examination revealed that his back was tender to palpation over bilateral paraspinal muscles.  Sensation was intact.  Bilateral lower extremities were 5/5 strength in all of his lower muscle groups.  His right ankle showed some crepitus with inversion.  His left ankle had a normal exam.  The exam was remarkable as both knees had pain with patellar loading and had pain with tightening of his quadriceps muscles.  

b.  Laboratory data was unremarkable.  MRI (magnetic resonance imaging) of the L-spine showed a leftward disk protrusion of the T12-L1 levels and to a lesser degree at the T11-T12 with degenerative disk changes at the T12-L1.  MRI of the C-spine was normal.  MRI of his shoulder showed no evidence of rotator cuff tear.  MRI of his right knee showed areas of bone bruising involving the medial femoral condyle and the inferior medial patella.  MRI of the right ankle showed abnormally high T2 proton density, low T1 weighted signal within the marrow of posterior talus, which was most consistent with edema related to bone bruising and micro stress fractures.  His right ankle bone scan demonstrated increased uptake in the talus.  His lumbar, thoracic, and cervical spine films showed no evidence of spinal fracture or malignancy.  His bilateral shoulders were noted as normal with no evidence of fracture dislocations.  His bilateral knee x-rays showed radiodense skin calcifications or debris along the superficial soft tissues of the right thigh.  His bilateral ankles were normal.  CT of the right ankle was normal.  Plain film radiographs of his wrist revealed an old evulsion fracture in the ulnar styloid process with an ununited accessory ossification center at the site.  No acute injury was noted in the wrist.  It was otherwise normal.  

c.  The report indicated that the applicant had made little progress with the therapies that he had been on and the hospital treatments that he had received.  His condition was diagnosed as thoracic and lumbar spine degenerative joint disease (DJD) at the T10-11, T12-L1, T11 Schmorl's node and left posterior disk protrusion T12-L1, T11-12 DJD of the spine; osteochondral (sic) defect to his right ankle; left wrist evulsion fracture of the ulnar styloid versus an ununited ossification center with chronic pain; right knee patellofemoral chondrosis with bilateral anterior knee pain.  The examining physician stated that the applicant was medically unacceptable [for retention].

8.  On 2 November 1999 a MEB recommended that the applicant be referred to a PEB because of the above-mentioned medical conditions.  The applicant concurred.  

9.  In a 2 December 1999 memorandum to the PEB, the applicant's commanding officer stated that the applicant's performance during the last ten months, despite his physical limitations, had been outstanding; however, his physical disability because of years on airborne status and injuries sustained in a near fatal automobile accident impacted on his ability to perform his duties.  Additionally, he was unable to perform the physical fitness test.  He stated that the applicant's ability to lead was hindered due to the serious nature of his physical condition.

10.  On 2 March 2000 a PEB determined that the applicant was physically unfit because of back, knee, right ankle and left wrist pain.  The PEB indicated that there was evidence of degenerative disk and DJD at T10-T11, T12-L1, as well as right ankle osteochondral defect and possible avulsion fracture of the ulnar styloid process.  It indicated that overall there was no knee or ankle joint instability, ranges of motion were normal, motor strength was 5/5, there was no muscle atrophy, and no neurovascular deficits.  It stated that there had been no amelioration or conservative therapy, and that the rating was for pain.  The PEB recommended that the applicant be discharged with severance pay with a         20 percent disability rating.  The applicant nonconcurred and demanded a formal hearing; however, on 21 April 2000 he requested that his demand for a formal hearing be withdrawn, stating that he concurred with the findings and recommendations of the PEB, and waiving his right to a formal PEB.  He stated that he accepted the 20 percent disability rating.  

11.  Physical evaluation boards are established to evaluate all cases of physical disability equitably 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.

12.  Army Regulation 635-40, paragraph B-24f, states in pertinent part that often a Soldier will be found unfit for a variety of diagnosed conditions which are rated essentially for pain.  Inasmuch as there are no objective medical laboratory testing procedures to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.  However, lack of objective findings does not constitute a valid reason for finding a Soldier unfit by analogy to a neuropsychiatric disability or assuming that the Soldier is malingering.  Rating by analogy to degenerative arthritis as an exception to analogous rating policies may be assigned in unusual cases with a 20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.  To do otherwise would be to combine pain ratings so as to achieve a percentage of disability that would result in erroneous disability retirement.

13.  Pain is ubiquitous, subjective, and cannot be measured objectively.  The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) does not provide a separate rating for pain, but incorporates pain as part of the overall percentage rating for a particular VASRD code.

14.  The applicant was discharged because of his disability on 26 August 2000.  He received $80,808 in disability severance pay.
15.  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.

16.  On 3 June 2002 the VA awarded the applicant service connected disability ratings for post traumatic stress disorder (PTSD), 30 percent; traumatic arthritis of the right fourth metatarsal, residual of a fracture, 10 percent; chondromalacia of the right patella (claimed as knee injury), 10 percent; chondromalacia of the left patella (claimed as knee injury), 10 percent; bursitis of the right shoulder,     20 percent; bursitis of the left shoulder, 20 percent; traumatic arthritis of the right ankle, 10 percent; traumatic arthritis of the left ankle, 10 percent; residuals of an ulnar fracture, left wrist, 10 percent; traumatic arthritis of the thoracic spine,       10 percent; and traumatic arthritis of the lumbar spine, 10 percent.  Service connection for DJD of the cervical spine was deferred.  His overall disability rating was 90 percent.

17.  On 24 September 2002 the VA awarded the applicant a service connected    disability rating of 60 percent for herniated nucleus pulposus of the cervical spine, with radiculopathy.  The VA determined that the condition to his lumbar spine had worsened and awarded him a 60 percent rating of herniated nucleus pulposus of the lumbosacral spine, with bilateral radiculopathy and sciatica, previously rated as traumatic arthritis of the lumbar spine with a 10 percent rating.  His overall disability rating was 100 percent.

18.  On 21 July 2002 the VA awarded the applicant a service connected disability rating of 0 percent for bilateral plantar fasciitis, and increased his rating for PTSD from 30 percent to 50 percent.   

19.  Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had pain to his back, knee, right ankle, and left wrist, as a result of his various injuries; consequently, the PEB determined that he be rated as     20 percent disabled because of his pain.  The rating was proper and fitting.  The applicant agreed; consequently he was discharged with severance pay.  

2.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.  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.

3.  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.

4.  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.

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

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__FE ___  __LB          __EP ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		_____Fred Eichorn_______
		        CHAIRPERSON

INDEX

CASE ID	AR2003096854	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040615	
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.