MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            5 April 2000                  
	DOCKET NUMBER:   AR1999031158

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		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:  That his Physical Evaluation Board (PEB) Proceedings (DA Form 199), be corrected to show that he was physically unfit under Veterans Administration Schedule for Rating Disabilities (VASRD) code 5293 instead of VASRD code 5099.

APPLICANT STATES:  He was diagnosed as having “severe intervertebral disc syndrome” which would require a 40 percent rating under VASRD code 5293.  VASRD code 5099 is for “bone conditions” which doesn’t apply to his disability.

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

He was commissioned as a second lieutenant on 16 February 1996 with 9 years, 11 months and 17 days of prior active enlisted service.  He remained on active duty as a physician assistant, being promoted to first lieutenant.

On 24 March 1999 a medical evaluation board (MEB) determined that the applicant was medically disqualified due to severe multilevel degenerative disc disease and bilateral degenerative joint disease of the knees and referred him to a PEB.  In the MEB summary the applicant’s medical history was chronicled, showing the on and off nature of the applicant’s back pain, how he was initially diagnosed as having disc desiccation and degenerative disc disease in January 1997 upon review of MRI results, and how he had a repeat MRI in April 1998 which showed a broad-based disc bulge and significant hypertrophy of the facet joints causing moderate to severe spinal can stenosis, a broad –based disc bulge with facet hypertrophy, central subligamentous disc protrusion, and desiccation of all but a couple of lumbar discs.  The MEB medical history details that while his medical conditions limited his movements, medical tests had ruled out nerve root compression.

On 19 April 1999 a PEB was convened which determined that the applicant was physically unfit due to back and bilateral knee pain under VASRD code 
5099-5003.  The PEB determined that the condition was 20 percent disabling under the guidelines in AR 635-40, paragraph b24f, so recommended that the applicant be discharged with severance pay..  The applicant concurred and waived a formal hearing.

Accordingly, on 28 June 1999 the applicant was honorably discharged due to physical disability, rated 20 percent disabled, with severance pay.

VASRD code 5003 is degenerative arthritis based on limitation of motion.  Any VASRD code ending in “99” are analogous codes which are always used in conjunction with another VASRD code.  When an analogous code is used it denotes that there isn’t a VASRD code which exactly describes the unfitting medical condition, so a code is used which is the closest to describing the unfitting condition.
AR 635-40, paragraph B-24, contains instructions on how to rate limitation of motion under VASRD code 5003.  Paragraph B-39 contains instructions for rating intervertebral disc syndrome and lumbosacaral strain.  This paragraph states that a rating of 40 or 60 percent disabled may be awarded predicated upon objective medical findings of neurological involvement as manifested by loss of bladder and or bowel control, sexual dysfunction or muscular atrophy.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  It is quite understandable why the applicant would think he was assigned an improper VASRD code since he was not assigned the code which would appear, on the surface, directly related to his medical condition.  However, the applicant did not have any major neurological dysfunction which would warrant a rating under the VASRD designated for intervertebral disc syndrome.

2.  The applicant’s unfitting condition was, in all actuality, his limitation of motion.  As such, the PEB determined it would be appropriate to rate him with an analogous VASRD code to the code which denotes limitation of motion.  This finding was appropriate in consideration of the circumstances.

3.  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

__rvo____  __sk____  __le ____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031158	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000405	
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.	108.05	
2.		
3.		
4.		
5.		
6.