MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 May 2000                   
	DOCKET NUMBER:   AR1999030376

	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. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Mr. Raymond J. Wagner		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 discharge for disability with severance pay be changed to a medical retirement.

APPLICANT STATES:  That the VA has rated his disabilities at 60 percent.  He appealed the physical evaluation board (PEB)’s decision to rate his disabilities at only 10 percent but he was denied.

COUNSEL CONTENDS:  Counsel makes no additional contention.

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

After having had prior enlisted and commissioned service in the Army National Guard and the Individual Ready Reserve, he entered active duty on 12 June 1995 with a specialty of 92B (Supply Materiel Management).

A medical evaluation board (MEB) examined the applicant for a complaint of low back pain.  The MEB noted he was initially seen in August 1997 with a 2-year history of lower extremity radicular pain that resolved but he continued to have persistent low back pain.  An MRI scan indicated a large disc herniation at L4-L5. He was offered surgery and underwent a partial laminectomy and discectomy.  His right lower extremity pain gradually improved but he was left with some significant low back pain and stiffness.  Palpation of the lumbar spine revealed no spasm or tenderness.  His neurologic examination was normal.  He was currently experiencing moderately severe back pain and it was such that it prevented him from running and from wearing load bearing equipment as well as functioning actively in a field environment.  On 15 June 1998, the MEB found the applicant unfit for duty due to mechanical low back pain secondary to degenerative lumbar disc disease and surgical treatment of herniated nucleus pulposis and recommended referral to a PEB.  On 29 June 1998, the applicant agreed with the findings and recommendation.

On 30 June 1998, a PEB found the applicant unfit for military service due to mechanical low back pain secondary to degenerative lumbar disc disease and surgical treatment of herniated nucleus pulposis and recommended that he be separated with severance pay with a disability rating of 10 percent.

The applicant nonconcurred with the PEB findings but waived a formal hearing.
He appealed, stating that his severance pay percentage was calculated considering the wrong condition.  He stated his records showed a well-documented history of degenerative disc disease or intervertebral disc syndrome.
His CAT Scan made it evident that his symptoms were not due to lumbosacral strain but rather a herniated disc.  He should have been evaluated under VA code 5293, intervertebral disc syndrome.  The MEB noted he was experiencing “moderately severe back pain.”  In VA code 5293, the adjective “severe” is used in the description of a condition warranting the disability rating of at least 40 percent.  The 23 March 1998 memorandum discussing his duty performance (this memorandum is not available and the applicant does not state who wrote it) noted that he was often on the floor in his office stretching to relieve the pain.  He could not sit and work for more than 15 minutes at a time without tightening up.  He had difficulty standing for long periods of time.  After long periods of vehicular movement he often hobbled out of the vehicle at stops to fall to the ground and stretch.  He could perform only limited physical training.  

On 21 July 1998, the U. S. Army Physical Evaluation Board reviewed his rebuttal. That agency noted that his medical board diagnosis was mechanical low back pain which is rated by analogy to lumbosacral pain in accordance with Department of Defense Instruction 1332.39, 14 November 1996, paragraph E2A1.1.19.4 of which states that code 5293, intervertebral disc syndrome, will not be used after the surgical excision of the ruptured disc.  The MEB summary indicated that he had no muscle spasm in his back and that his neurologic examination was normal.  He was found to have been properly rated.

The applicant’s final Officer Evaluation Report (OER) covered the period             1 October 1997 through 15 June 1998.  He performed duties as the brigade supply officer of a rapid deployment contingency armored combat team consisting of 4,500 soldiers and over 400 combat vehicles.  His rater rated his performance as “outstanding performance, must promote” (the highest rating).  Comments included “…did an outstanding job as the Brigade Supply Officer…has excelled in a highly complex and high tempo environment… has limitless potential for difficult logistical and command assignments.”  His senior rater rated his promotion potential as “best qualified” (the highest rating).  Comments included “…His hard work and dedication kept the Brigade Combat Team logistically supportive…has unlimited potential for future demanding assignments in our Army…”  His previous OERs contained similar laudatory comments.

On 28 September 1998, the applicant was discharged, with severance pay, for disability.

On 22 February 1999, the VA awarded the applicant a 60 percent disability rating for herniated discs at L5-S1 effective 29 September 1998.

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 purpose of his employment on active duty. 

The Department of Veterans Affairs Schedule for Rating Disabilities (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.

The VASRD gives code 5293, intervertebral disc syndrome a 60 percent rating when it is pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm or other neurological findings appropriate to the site of the disease disc; a 40 percent rating when it is severe with recurring attacks and intermittent relief; and a 20 percent rating when it is moderate with recurring attacks.  The VASRD gives code 5295, lumbosacral strain a 40 percent rating when it is severe with listing of whole spine to opposite side or marked limitation of forward bending in standing position; a 20 percent rating with muscle spasm on extreme forward bending or loss of lateral spine motion or unilateral in the standing position; and 10 percent with characteristic pain on motion.

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.  The VA, however, 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, an individual’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 the individual for VA benefits based on an evaluation by that agency.

In the processing of this case, an advisory opinion was obtained from the medical advisor to the Army Review Boards Agency (SEE ATTACHED).  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 the aforementioned requirement.

2.  The Board notes that while the applicant may have had a herniated disc, his complaint was of low back pain.  He did not have the muscle spasms or neurological problems consistent with a diagnosis of a code 5293 condition, in addition to which Department of Defense Instruction 1332.39, 14 November 1996 precluded its use in his case.  The Board concludes that he was properly rated with a 10 percent disability rating for pain on motion under code 5295.

3.  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; the Army is.  The Board notes the applicant’s last OER, which covers the period he was undergoing his MEB and PEB, gave no indication that he was unfit to perform his military duties. 

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

__cmf___  __fe____  __rjw___  DENY APPLICATION

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

INDEX

CASE ID	AR1999030376	
SUFFIX		
RECON		
DATE BOARDED	20000517	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.02	
2.		
3.		
4.		
5.		
6.