MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            23 January 2003
	DOCKET NUMBER:   AR2002076951

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Patrick H. McGarthy, Jr.		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 records be corrected to show he was placed on the Temporary Disability Retired List (TDRL) with a 50 percent disability rating.

APPLICANT STATES:  That the Physical Evaluation Board (PEB) did not properly evaluate and process his case and failed to properly rate all his conditions.  After injuring his back in a parachuting accident, he was admitted to the Orthopedic Ward at Eisenhower Army Community Hospital.  After initial treatment, to include being placed in a body cast, he was sent to the Medivac/Self Care Ward.  He had no direct access to a doctor, nurse, or technician.  He immediately developed excruciating pain in his chest.  The following morning he was told he had a pulled muscle.  After 3 days of pain, he coughed up blood.  He was rushed to the emergency room where he was diagnosed with a pulmonary embolism.

He states he lost 40 pounds over his 5-week stay in the hospital and his body could no longer hold up the body cast.  His orthopedic surgeon saw this and took photographs of him lifting up and dropping his body cast to show his students how not to practice medicine.

After his return to Fort Hood, TX, he was referred to Brooke Army Medical Center and became a patient of Doctor A___.  Doctor A___ saw him a total of 4 times and recommended he go before a Medical Evaluation Board (MEB).  He was then referred to a PEB.  Prior to the PEB, he requested Doctor A___ refer him to a spine surgeon at Walter Reed Army Medical Center.  Doctor A___ declined and said he never wanted to see or hear from him again.  He has not been evaluated by a neurosurgeon or orthopedic surgeon in over 6 months.  

Following his unfavorable decision from the PEB, he promptly appealed.  His Judge Advocate General counsel told him he would "not receive favorable consultation from the PEB" because Doctor A___ had told them the applicant was disrespectful by requesting a second opinion.  He was told there was nothing he could do.

He currently cannot lift anything that weighs more than 45 pounds.  He continues to have great difficulty with flexibility.  He experiences terrible pain in his back if he has to stand longer than 3 minutes.  He experiences muscle spasms in his left calf as well as numbness in his right foot frequently.  He still suffers from severe pain in his lower chest region and has inhalation problems.

COUNSEL CONTENDS:  That assigning a combined rating of only 10 percent   to the applicant's two vertebral fractures was incorrect because he suffered         2 separate vertebral fractures with demonstrated deformity of at least one vertebral body.  Department of Veterans Affairs (VA) code 5285 requires adding another 10 percent for demonstrable deformity of a vertebra.  Code 5292 provides for a rating of 20 percent with moderate limitation of motion of the lumbar spine.  As of 18 December 2001, the applicant's range of motion of the lumbar spine was restricted to 15 to 20 degrees of extension and 45 degrees of forward flexion.  Code 5298 (sic, but most likely intended to mean 5285 as code 5298 is removal of the coccyx) provides for an additional 10 percent due to demonstrable deformity of the L1 vertebral body.  The applicant also suffered a compression fracture of the L4 vertebral body with disruption of the L3-4 disc.  This was a separately unfitting condition ratable at 10 percent per code 5295.

Counsel contends that each of the vertebral fractures, the L3-4 internal disc disruption, and the pulmonary embolism with breathing difficulty was a separately unfitting condition because any one of those conditions failed medical retention standards and made the applicant unfit for duty.  Because each of those conditions was unfitting, the PEB should have separately rated each of those conditions.  The applicant should have been placed on the TDRL with a combined rating of 50 percent because he continues to suffer residuals of his injuries and pulmonary emboli.  The PEB's rating and decision were arbitrary, capricious, contrary to law, and not supported by substantial evidence.

Doctor A___'s failure to refer the applicant for a consult was improper and his response to the applicant was offensive to the conscience.  His failure to allow the applicant to obtain another opinion caused an incorrect evaluation of the applicant's conditions.  Moreover, his communication to the PEB that the applicant had been disrespectful prejudiced the PEB against the applicant.

Counsel requests the applicant's disability rating be changed to 50 percent as follows:  (1) fracture L1 vertebra with moderate loss of motion, VA code 5292,    20 percent with an additional 10 percent due to demonstrable deformity (VA  code 5285); (2) fracture L4 - separately unfitting, VA codes 5295 and 5285,       10 percent; and (3) pulmonary embolism - analogous codes, VA code 6818,     20 percent.  

One hundred percent minus 30 percent equals 70 percent; 10 percent of           70 equals 7; 70 percent minus 7 equals 63 percent; 20 percent for embolism    (20 percent of 63 percent is 12.6 percent; 63 percent minus 12.6 percent equals 50.4 percent.  Total disability rating is 50 percent.

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

He was commissioned a second lieutenant and entered active duty on 11 July 2000.  He completed the Armor Officer Basic Course.

On 11 April 2001, during an airborne jump at Fort Benning, GA, the applicant's parachute collapsed, dropping him 30 feet to the ground.

On 10 August 2001, the applicant was given a permanent profile due to his lumbar burst fractures.  He was given assignment limitations of no riding/driving tactical vehicles; no wearing of LBE (load-bearing equipment) or Kevlar (helmet); no physical training; no marching; and no prolonged standing at attention or in formation.

On 27 August 2001, the applicant's commander noted that the applicant was able to command his platoon in the tank simulator, supervise tank maintenance and turn-in in the motor pool, and perform his additional duties in the company.  However, his permanent profile rendered him unable to adequately perform all of the duties normally expected of a second lieutenant and tank platoon leader in the Armor Branch.  

An MEB Medical Record Report dictated 4 November 2001 indicated the applicant's chief complaint was low back pain.  A physical examination revealed that after his external orthosis was removed he had a full range of lumbar motion with pain.  His spine was within normal limits with the exception of mild tenderness to palpation over the lower lumbar spine.  Pain was evaluated as moderate and constant.  He remained unable to perform any high impact activity but was able to function within the confines of his permanent profile.

The examining physician, Doctor A___, noted that the applicant's multiple burst fractures represented a difficult problem.  Maximal surgical intervention could involve instrumentation (i.e., a rod, pins, screws, etc.) from T12 through L2 and then from L3 through L5.  That would leave him with only two discs available for motion in the lumbar spine.  It was probable he would require further surgery later in life due to advanced degenerative change at the remaining disc spaces.  
Doctor A___ felt he was a poor surgical candidate in terms of his pain.  The maximal area of pain appeared to be centered around L4 and that level could need to be addressed surgically on its own (i.e., L4 separate from T12 through L2 and L3 through L5).  Doctor A___ noted that that could exacerbate the applicant's kyphotic (kyphosis - a term applied to the exaggerated curve of the spine that results in a rounded or hunch back) deformity at his L1 burst fracture and could cause him pain in that region.  

An MEB Addendum typed 6 November 2001 addressed the applicant's pulmonary condition.  Doctor C___ from the Pulmonary Staff noted that the applicant was evaluated for a complaint of continued shortness of breath as well as dyspnea (shortness of breath) on exertion associated with significant chest discomfort.  His history was complicated by the pulmonary emboli that occurred while he was hospitalized and in a body cast.  Doctor C___ noted that the applicant's initial evaluation was fairly unremarkable, to include vital signs as well as a normal lung examination.  A cardiovascular examination revealed a regular rate and rhythm without murmurs.  His chest wall was without deformities and there was minimal reproducible pain on compression.  A pulmonary function test showed a significant restrictive defect; however, flow volume loops suggested that there was poor effort and inability to take deep inhalations secondary to pain. There was no evidence of obstruction.  A chest x-ray was unremarkable.  A ventilation profusion scan was read as a normal ventilation profusion scan.  A CT scan of the chest showed no evidence of lung parenchymal disease (a disorder characterized by inflammation and eventual scarring of the deep lung tissues).  A few scattered interstitial fibrotic scars at both lung bases and some mild pleural thickening was noted; however, the CT scan was otherwise unremarkable.  A Doppler ultrasound of the groin was normal and showed no evidence of deep vein thrombosis.  

A bone scan ruled out a rib fracture.  There was extensive soft tissue accumulation over the upper anterior chest and a pattern of the pectoralis muscles and focal uptake in the left upper peristernal region consistent with trauma.  There was diffuse uptake of the L1 vertebra consistent with a history of a burst fracture and mild uptake in the L4 vertebral body which could be secondary to trauma as well.  The remainder of the uptake was within normal limits.  Doctor C___ informed the applicant of the findings of the bone scan and that they were consistent with a history of trauma as well as the possibility of a chronic costochondritis (inflammation of the cartilage of the rib cage) involving the left peristernal area.  It was noted that in light of his injuries he could have a prolonged rehabilitation to include exertional symptoms as well as some chest discomfort.  However, there was no evidence of any pulmonary disease. 

The applicant acknowledged receipt of the addendum and agreed with the findings and recommendations.

In an addendum to the MEB Medical Record Report dictated 1 January 2002, Doctor A___ indicated the applicant's chief complaint to be low back pain.  A physical examination revealed mild tenderness to palpation over the lower lumbar spine; no tenderness to palpation at the thoracolumbar junction; range of motion restricted to 15 - 20 degrees of extension and 4 degrees of forward flexion; range of motion was restricted by pain.  A neurological examination revealed the cranial nerves to be intact; motor 5/5 throughout the lower extremities; sensation intact to light touch and pin prick throughout the lower extremities; gait and coordination normal.  

An MRI found internal disc disruption at T12 - L1 and L1 - L2 surrounding his L1 burst fracture.  There was no longer a significant abnormal signal in the marrow at L1, indicating healed bony injury.  There was L3 - L4 internal disc disruption with a Snorl's node superiorly related to his L4 burst fracture.  There was no abnormal signal in the L4 body, indicating bony healing had occurred.  There was degenerative disc disease at L5 - S1 which could have preceded the applicant's accident.  There was no significant canal compromise or neuroforaminal stenosis (narrowing of the cervical disc space).  At L1 there was 18 degrees of kyphosis with 50 percent loss of height anteriorly and no canal compromise.  At L4 there was no kyphosis and 15 degrees loss of vertebral body height.

The applicant acknowledged receipt of the addendum to the MEB and agreed with the findings and recommendation.

On 4 December 2001, an MEB found the applicant had an L1 and L4 burst fracture with low back pain and referred him to a PEB.  He agreed with the MEB's findings and recommendation on 19 December 2001.

On 2 February 2002, an informal PEB found the applicant to be physically unfit due to chronic low back pain due to L1 and L4 burst fractures, without neuralgic abnormality or documented chronic paravertebral muscle spasms on repeated examinations, with characteristic pain on motion, VA Schedule for Rating Disabilities (VASRD) codes 5299 and 5295.  The PEB recommended his separation with severance pay with a 10 percent disability rating.  On                14 February 2002, the applicant did not concur and demanded a formal hearing.

The applicant was notified of a formal PEB hearing on 14 February 2002.  At that time he requested a delay until 8 March 2002.

By email dated 16 March 2002, the applicant requested Doctor A___ provide him a consult to be examined at Walter Reed Army Medical Center to validate/refute the PEB findings because of the conflicting information he had received.  He stated that he requested to remain on active duty and therefore that was an extremely important consultation.

On 16 March 2002, Doctor A___ responded by email saying, "Good luck with your request.  I have served you to the best of my ability and feel that I have been exceptionally receptive to you (sic) needs and requests throughout the process.  We have discussed the risks and benefits of surgical intervention in detail.  There is no further need to contact me by e-mail or through the office.  I am not going to facilitate your request unless ordered to by the PEB/MEB."

According to the advisory opinion obtained in the processing of this case, on      19 March 2002, the Deputy Commander for Clinical Services reviewed the applicant's request and Doctor A___'s 16 March 2002 comments.  The medical personnel at the medical treatment facility did not approve any further medical consultations and the applicant did not offer any further comments or objections. 

The applicant withdrew his request for a formal PEB and on 21 March 2002 concurred in the informal PEB's findings and recommendations.  

In April 2002, the applicant  requested to be continued on active duty.  He indicated he understood that he must be able to maintain himself in a normal military environment without the environment adversely affecting his health or requiring extensive medical care.  On 29 April 2002, the U. S. Total Army Personnel Command disapproved his request to be continued on active duty.

Apparently, the applicant was discharged with severance pay on 31 July 2002.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) is not available.

In the processing of this case, an advisory opinion was obtained from the U. S. Army Physical Disability Agency (USAPDA).  The advisory opinion summarized his medical/MEB/PEB history and then went on to state that an examination and pulmonary testing of the applicant revealed normal pulmonary functions.  He had some apparent restrictive results but these were the result of pain and "poor effort."  All other subsequent testing revealed no abnormalities.  

The USAPDA stated that the applicant could not be rated at: VA code 5293 as he had no disc injuries nor neurological symptoms; 5286-5289 as there was no ankylosis of the spine; 5290-5291 as he had no injuries in his cervical or dorsal spinal areas; 5292 as his lumbar limitation of motion was not mechanically limited but was limited by pain; or 5285 as he had no cord involvement, neck brace, or compensable residuals.  (To be rated for residuals from his fractures under 5285 required deformities "visible to the naked eye and greater than 50 percent compression").

The USAPDA stated that the applicant could not be rated for any pulmonary impairments as no pulmonary diagnoses were listed in his MEB/addenda.  Even if listed it would not have been unfitting as his physical profile did not list any pulmonary restrictions and his commander's performance memorandum only listed the profile restrictions as reasons why the applicant could not perform in the future.

The USAPDA opined that the PEB properly rated the applicant at 10 percent, separation with severance pay under the VA code best suited to rate his impairment:  5299/5295 and recommended no change to his records.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  Counsel responded by stating that the USAPDA noted the applicant requested an additional medical consult but did not claim incorrect medical treatment or findings.  Yet, the applicant's email to Doctor A___ shows he requested a consult because of conflicting information.  

Counsel described the applicant's injuries in detail (apparently as a response to the USAPDA describing his injuries as "L1 and L4 burst fractures with slight/moderate back pain").

Counsel contended in effect that the applicant should have been rated at least  30 percent for the vertebral fractures based on the impact his fractures had on his future military service and upon his prospects for civilian employment.  Counsel contended that additional evidence submitted with the rebuttal from a vocational expert indicates the applicant's spine fractures prevent him from meeting job attendance and performance requirements.  He cannot lift over      10 pounds, which limits him to sedentary work.  However, the need to elevate his legs precludes him from performing the functions of sedentary work.  In addition, his not being able to stand or move about on foot further limits his ability to perform in a competitive capacity.  The PEB's findings were arbitrary and capricious because the formal PEB told the applicant's attorney that they knew he had been disrespectful to Doctor A___.  Doctor A___'s refusal to allow him to obtain a second opinion deprived him of the opportunity for a more complete evaluation of his condition and disability and foreclosed additional treatment.  

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 purposes of his employment on active duty.  

Army Regulation 635-40 prescribes the function of the TDRL.  The TDRL is used in the nature of a “pending list.”  It provides a safeguard for the Government against permanently retiring a soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.

Army Regulation 635-40, appendix B, prohibits pyramiding.  Pyramiding is the term used to describe the application of more than one rating on any area or system of the body when the total functional impairment of that area or system can be reflected under a single code.  All diagnoses that contribute to total functional impairment of any area or system of the body will be merged with the principal diagnosis for rating purposes.

Army Regulation 635-40, appendix B-39, states that, for VASRD code 5295 (lumbosacral strain), when there is no neurological involvement, lesser ratings will begin with a 0 percent rating for chronic low back pain of unknown etiology.  Demonstrable pain on spinal motion or discovery of back pain etiology will warrant a 10 percent rating unless paravertebral muscle spasms are also present, in which case a 20 percent rating will be awarded.

Army Regulation 635-40, chapter 3 states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her grade or rank.  There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity.

Army Regulation 635-40, chapter 3 also states that providing definitive medical care to active duty soldiers requiring prolonged hospitalization who are unlikely to return to active duty is not within the Department of the Army mission.  

The 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.  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.

Department of Defense Instruction (DODI) 1332.39 implements policy for rating disabilities of service members determined to be physically unfit and who are eligible for disability separation.  Special instructions for VASRD codes 5285 - 5295 (the spine) are that each segment of the spine is regarded as a group of minor joints.  Combination of sacroiliac and lumbosacral joints is regarded as a major joint.  Each group of minor joints is ratable as one major joint only when separate ratings are justified by radiographic evidence of pathology besides limitation of motion or other evidence of painful motion of the individual segments involved.

VASRD code 5292 (limitation of motion of the lumbar spine) gives a 40 percent rating when severe; 20 percent when moderate; and 10 percent when slight.   

VASRD code 5285 (residuals of fracture of vertebra) gives a 100 percent rating with cord involvement; a 60 percent rating without cord involvement or with abnormal mobility requiring neck brace.  In other cases, rate in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body.

DODI 1332.39 gives special instructions for VASRD code 5285.  It states that the 10 percent addition to the rating is made only on demonstrable, substantial deformity of a vertebral body (i.e., visible to the naked eye and greater than       50 percent compression on an x-ray).  

VASRD code 5295 (lumbosacral strain) gives a 40 percent rating when severe; a 20 percent rating with muscle spasm on extreme forward bending or loss of lateral spine motion or unilateral in standing position; a 10 percent rating with characteristic pain on motion; and a 0 percent rating with slight subjective symptoms only.  

VASRD code 6818 (residuals of injuries to the pleural cavity) gives a 60 percent rating when severe with dyspnea or cyanosis on slight exertion; a 40 percent rating when moderately severe with pain in chest and dyspnea on moderate exertion; and a 20 percent rating when moderate, with bullet or missile retained in lung, with pain or discomfort on exertion or with scattered rales or some limitation of excursion of diaphragm or of lower chest expansion.  

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, 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 mission of the Veterans Benefits Administration is to provide benefits and services to veterans and their families in a responsive, timely and compassionate manner in recognition of their service to the nation.

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 this requirement.

2.  The Board notes the applicant's and his counsel's contentions that he should have been rated at least 50 percent; however, there is no evidence to show that the USAPDA rated the applicant incorrectly or that the rating was based on Doctor A___'s alleged complaints (for which no evidence is provided) about the applicant's "disrespect."

3.  The VASRD is used in determining rating percentages; however, DODI 1332.39 is the governing regulation when it modifies VASRD guidance.  In regards to VASRD code 5285 and the additional 10 percent given with demonstrated deformity of at least one vertebral body, DODI 1332.39 states that the 10 percent addition to the rating is made only on demonstrable, substantial deformity of a vertebral body (i.e., visible to the naked eye and greater than      50 percent compression on an x-ray).  The MEB Medical Record Report dictated 1 January 2002 indicated that the applicant had, at L1, 18 degrees of kyphosis with 50 percent (not greater than 50 percent) loss of height.  The additional       10 percent could not be given.

4.  The Board notes counsel's contention that VASRD code 5292 provides for a 20 percent rating with moderate limitation of motion of the lumbar spine.  However, the MEB dictated 4 November 2001 indicated that the applicant had a full range of lumbar motion albeit with pain.  The MEB addendum dictated           1 January 2002 indicated he had a limited range of motion but it was limited by pain, not by mechanical limitations.  Therefore, VASRD code 5292 was not appropriate.

5.  The Board notes counsel's contention that the applicant suffered from an L1 and L4 fracture and L3 - L4 internal disc disruption.  However, these vertebra are from the same system, i.e., the spine.  To rate them separately would result in pyramiding, a practice prohibited by regulation.  

6.  The Board notes counsel's contention that the applicant's spinal injuries and his pulmonary embolism with breathing difficult were separately unfitting conditions.  However, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  The Board notes, as did the USAPDA in its advisory opinion, that the applicant was not given a physical profile due to a breathing problem.  He was only given a profile for his lumbar burst fractures.  His commander indicated that his profile prohibited him from adequately performing all of the duties normally expected of an Armor lieutenant.  There is no evidence to show any breathing problem prevented him from performing his duties.  Only the unfitting conditions will be considered in arriving at the disability rating.

7.  The Board notes counsel's contention that Doctor A___'s failure to refer the applicant for a consult was improper and his response to the applicant was offensive to the conscience.  From the advisory opinion it appears that it was not Doctor A___'s decision whether or not to approve further medical consultations but rather the Deputy Commander for Clinical Services' decision in coordination with medical personnel at the medical treatment facility.  It also appears the applicant did not offer any further comments or objections at the time his request was disapproved.

8.  It is not clear to the Board what the "conflicting information" was that made the applicant request a second opinion and he does not clarify what that information was with this application.  Based upon the MEB Medical Record Report dictated 4 November 2001, the Board speculates it had to do with whether surgical intervention would improve his condition (i.e., alleviate his pain).  The Board presumes that he was examined by competent military medical personnel who made a medically informed decision that such intervention would not be ideal, could cause him further pain, and could severely (and mechanically) restrict his range of motion.  Such treatment, even if successful in alleviating his pain, would be counterproductive and would have lessened his potential for future military service even further.  It is not the Army's mission to provide definitive medical care to active duty soldiers requiring prolonged hospitalization who are unlikely to return to active duty.  It most likely appeared to the deciding medical personnel that with the applicant's complaint of chronic pain and his commander's evaluation he would not (as turned out to be the case) be returned to active duty.
Therefore, it appears the decision not to approve a consult for a second opinion was appropriate.

9.  The applicant's chief complaint was low back pain due to L1 and L4 burst fractures.  VASRD code 5295, lumbosacral strain, gives a 10 percent rating with characteristic pain on motion.  There is no evidence to show he had muscle spasms (for a 20 percent rating).  In addition, Army Regulation 635-40 states that, for VASRD code 5295, demonstrable pain on spinal motion or discovery of back pain etiology will warrant a 10 percent rating unless paravertebral muscle spasms are also present.  It appears to the Board that the PEB made the correct findings and recommendations.  Placement on the TDRL would not have been appropriate as his condition at the time he separated was not severe enough to make him eligible for a physical disability retirement.

10.  The Board notes that the applicant agreed with all findings and recommendations of the MEB.  Although he initially did not concur with the findings and recommendation of the informal PEB, he contends he later changed his mind after his counsel told him there was nothing he could do.  This contention is not entirely credible.  The applicant was a commissioned officer.  He had already been informed a formal PEB would take place.  If he truly believed the informal PEB rated him incorrectly, he had a responsibility to himself to follow through with the formal PEB.

11.  In addition, it is not clear to the Board that the applicant nonconcurred with the findings and recommendation of the informal PEB because he believed he was rated too low.  He nonconcurred on 21 February 2002.  On 16 March 2002, he requested a second medical opinion.  On 23 April 2002, he requested continuation on active duty because he believed he could maintain himself in a normal military environment without the environment adversely affecting his health or requiring extensive medical care.  
12.  If the applicant's condition has subsequently deteriorated, the VA has the responsibility and jurisdiction to recognize any changes in that condition over time (and provide required treatment) by awarding their own disability rating.  The applicant should be aware that the VA, operating under its own policies and regulations, 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, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level.  Such a difference would not demonstrate an error on the part of the Army.

13.  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

__KAN__  __GJW  _  __PHM __  DENY APPLICATION 

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

INDEX

CASE ID	AR2002076951	
SUFFIX		
RECON		
DATE BOARDED	2003/01/23	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.02	
2.	108.05	
3.		
4.		
5.		
6.