RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            08 JULY 2004                  
	DOCKET NUMBER:   AR2003098535

	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:

	Ms. Kathleen Newman		Chairperson	
	Ms. Gail Wire		Member	
	Mr. William Powers		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.  In effect, the applicant requests physical disability retirement. 

2.  The applicant states that the Department of Veterans Affairs (VA) awarded him a 70 percent disability rating for the same medical conditions for which the Army awarded him a 10 percent rating.  The 10 percent rating was erroneous and much too low.  He would like his rating awarded by the Army to equal that awarded by the VA.  

3.  The applicant provides a copy of his 5 August 1999 DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of a 13 October 2000 VA rating decision, and a copy of a 23 July 2002 VA letter to the applicant concerning their decision on his claim.

CONSIDERATION OF EVIDENCE: 

1.  The applicant was on active duty for training in 1990 at Fort Gordon, Georgia and was released to his Reserve unit at Fort Meade, Maryland on 25 October 1990 upon completion of his training.   

2.  A 2 February 1996 DD Form 214 shows that he enlisted in the Regular Army on 27 June 1991.  His personnel qualification record shows that he completed training as an aircraft armament/missile systems repairman, and in June 1992 was assigned to Fort Rucker Alabama.  In October 1995 he was assigned to Fort Hood, Texas.  The applicant signed a declination of continued service statement in October 1995 and on 15 December 1995 requested that he be discharged from the Army prior to his normal separation date.  His request was approved and he was released from active duty on 2 February 1996 and transferred to the Army Reserve Control Group (Reinforcement) at St. Louis.  

3.  A 5 August 1999 DD Form 214 shows that the applicant entered on active duty on 3 September 1997, completed training as a motor transport operator, and in October 1997 was assigned to Fort Story, Virginia.

4.  A 30 March 1999 report of a medical board conducted at the Naval Medical Center in Portsmouth, Virginia, shows that the applicant's condition was diagnosed as myofascial pain syndrome.  The evaluating physician stated that he was seen for evaluation with the complaint of persistent chronic back pain extending from the upper and lower extremities bilaterally.  The physician stated that according to his history and a review of his health record, the applicant was well until March 1993 when he noted his back pain.  He stated that the applicant was not [currently] on any medications, but that he was treated by a chiropractor approximately one to two times a week, which did provide significant relief of his symptoms.  
5.  The physician stated that the applicant was in no acute distress, his range of motion was within normal limits, his spine appeared straight, and there was no gait abnormality or antalgic lift noted.  He stated that there was tenderness to palpation of bilateral trapezius region with trigger points present, as well as the lumbar paravertebral spinal muscles.  

6.  The doctor stated that based upon the fact that the applicant had been on multiple physical profiles over the past five years and had failed to make full recovery and was unable to return to his full active duty status, it was unlikely that he would be fit for full duty in his current condition.  He stated that each time his condition had improved, his activities at work had aggravated his condition requiring him to start again with treatment.  He stated that his medical condition interfered with his reasonable performance of duty.  He referred the applicant's case to the Army for a fitness for duty determination.  The applicant was informed of the information contained in the medical board, and stated that he did not desire to submit a statement in rebuttal.    

7.  On 7 March 1999 the Medical Department Activity at Fort Eustis, Virginia forwarded the medical board proceedings to the Physical Evaluation Board (PEB) at Washington, D.C.

8.  In a 21 April 1999 memorandum to the Fort Eustis Medical Department Activity the applicant's commanding officer stated that the applicant was not pending any adverse personnel action, but was pending an administrative bar to reenlistment for failure to perform his duty as a squad leader.  He stated that applicant's ability to perform his duties was severely degraded by his physical limitations, in that he could not take the Army Physical Fitness Test, could do no running, heavy lifting, prolonging walking, standing, or crawling; and could not be deployed.

9.  A 30 April 1999 Physical Profile (DA Form 3349) shows that the applicant was awarded a physical profile serial of 1 1 3 1 1 1 for myofascial pain syndrome.

10.  A 3 May 1999 report of medical examination shows that the applicant had chronic low back pain and that his condition was diagnosed as myofascial pain syndrome, unresponsive.  In the report of medical history that he furnished for the examination, the applicant stated that his health was good overall.  He stated that he still had recurrent back, leg, and arm pain, and that the pain was a result of an injury that he sustained in March 1993 at the air assault school at Fort Rucker, Alabama.  That report also indicated that he had sustained a fracture to his left forearm, date unknown, and that plates and screws were installed to repair the fracture, then removed.  That report had a notation to the effect that he had sustained a fracture, bilateral radius ulnar. 

11.  On 26 May 1999 a PEB determined that the applicant was physically unfit because of his myofascial pain syndrome with motor strength being normal and no neurological deficit.  The PEB stated that his pain was in the lower back with bilateral trapezius trigger points and also in the lumbar paravertebral spinal muscles.  The PEB indicated that his gait was normal as was his range of motion.  The PEB recommended a disability rating of 10 percent and separation from the Army with severance pay.  The applicant concurred and waived a formal hearing of his case.

12.  The applicant was discharged under the provisions of Army Regulation    635-40 because of his physical disability on 5 August 1999 and awarded disability severance pay in the amount of $23,524.20.  

13.  On 13 October 2000 the VA awarded the applicant a 40 percent disability rating for myofascial pain syndrome (claimed as low back pain, bilateral foot pain, and vertigo like symptoms), a 10 percent rating for residuals of a fracture of his distal right ulna with right wrist pain, and a 20 percent rating for residuals of a fracture of his distal left radius and ulna, status post open reduction and internal fixation with surgical removal of hardware and left wrist pain. 

14.  On 23 July 2002 the VA informed the applicant that the ratings for his service-connected conditions had not changed, and that his entitlement to a     100 percent disability rating was denied because he had not shown that he was unable to work because of his disabilities.

15.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It 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.

16.  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.

17.  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 civilian occupations.  

18.  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 determined the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations.

19.  Diagnostic code numbers appearing opposite the listed ratable disabilities in the VASRD are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis by the VA, and extend from 5000 to a possible 9999.  When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be “built up.”  The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be “99” for all unlisted conditions.  

20.  VASRD Code 5295, Lumbosacral strain, has disability percentage ratings ranging from 40 percent (severe), 20 percent (with muscle spasm on extreme  forward bending, loss of lateral spine motion unilateral, in standing position,      10 percent (with characteristic pain on motion) to 0 percent (with slight subjective symptoms only).

21.  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.

22.  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 medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and that his 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.          

2.  The applicant's contentions, now, almost four years after his discharge, 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. Noted is the fact that at the time that the PEB recommended that he be awarded a 10 percent disability rating for his myofascial pain syndrome, the applicant did not demand a formal hearing, but concurred with the PEB recommendation, waiving his right to a formal hearing of his case.  

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.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  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.

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

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KN ___  __GW___  __WP___  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.

		___Kathleen Newman______
		        CHAIRPERSON

INDEX

CASE ID	AR2003098535	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040708	
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.