IN THE CASE OF: 

		BOARD DATE: 13 December 2023

		DOCKET NUMBER: AR20230004954


APPLICANT REQUESTS: reconsideration of his previous request for correction of his 
DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to show a disability rating 
of at least 30% resulting in his retirement for physical disability instead of discharge with 
severance pay.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States)
*	Medical Evaluation Board (MEB) Narrative Summary 
*	DA Form 199
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Medical Consultation Summary, dated 13 March 2003
*	Department of Veterans Affairs (VA) Rating Decision
*	VA Disability Benefits Questionnaires 
*	Electromyography (EMG) and Nerve Conduction Studies (NCS) information 
papers
*	X-rays of Spine, Neck, or Back information paper

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Number AR1999028594 on 9 February 2000.

2.  The applicant states: 

	a.  During his medical examinations, no one referred to the intraspinal extradural 
cyst pressing on his spine. At the time of his medical board, Computed Tomography 
scans or Magnetic Resonance Imaging’s were not used by the Department of Defense 
or the VA but yet he was discharged with severance pay. From his back he developed 
neuropathy, which was present years prior, but no one checked for it. He now has 
neuropathy in his upper and lower areas, and he suffers from constant pain. No 
Electromyography or Nerve Conduction Studies were done. 

	b.  He was diagnosed with lumbar degenerative disc disease, but no one mentioned 
the cyst on his spine which was found by . and which is causing additional 
issues. He should be given a 30% rating and a medical retirement.

3.  The applicant enlisted in the Regular Army on 15 November 1988. He held military 
occupational specialty 91E (Dental Specialist). He served through several periods of 
reenlistment.

4.  The applicant's DA Form 3947 (MEB Proceedings) dated 21 September 1998, 
shows he was diagnosed with lumbar degenerative disc disease and bilateral stress 
reaction, right and left tibia with stress fracture of right tibia, which did not meet medical 
retention standards in accordance with Army Regulation (AR) 40-501 (Standards of 
Medical Fitness), paragraph 3-41e (Miscellaneous conditions and defect). The MEB 
recommended the applicant's referral to a Physical Evaluation Board (PEB).

5.  On 22 January 1999, a PEB found the applicant unfit for further military service due 
to back and bilateral leg pain with findings of lumbar degenerative disc disease and 
bilateral stress reactions of the right and left tibia and stress fracture right tibia. There 
was no evidence of neurovascular deficits. Rated for pain under the provisions of 
AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Appendix B, 
paragraph B-24f.

6.  The PEB recommended a 20% disability rating and the applicant's separation with 
severance pay. On 27 January 1999, the applicant concurred with the PEB's findings 
and recommendations and waived a formal hearing of his case.

7.  The applicant's DD Form 214 shows he was discharged on 18 April 1999 under the 
provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 
paragraph 4-24B (3), by reason of disability, severance pay. His DD Form 214 shows 
he completed 10 years, 5 months, and 4 days net active service this period. He was 
paid severance pay in the amount of $34,926.00.

8.  The applicant provided: 

	a.  Medical Consultation Summary, dated 13 March 2003, issued by Dr. M.A.F., 
presenting for a consultation from Dr. L__. He presents complaining of low back pain 
and numbness in the right leg and foot. He states that he has had the low back pain on 
and off for a number of years. However, he has had the symptoms into his right leg for 
the last four weeks. Four months ago, he had a sudden onset of excruciating lower back 
pain that nearly completely disables him. It was extended into his right leg at that time. 
However, now he does not have any pain in the right leg it is constant with numbness. 
In the assessment it shows he was diagnosed with:

*	chronic low back pain with recent exacerbation
*	degenerative disc disease L-4-5 and L-5 S-1
*	far lateral right paracentral herniated nucleus pulposus L-4-5
*	right paracentral herniated nucleus L-5 S-1 with intraspinal extradural cyst 

	b.  A VA Rating Decision, dated 12 August 1999, showing he was granted service-
connected disability compensation, effective 19 April 1999, for the following conditions 
with the corresponding disability ratings:

*	degenerative disk disease, lumbar spine, L-4-5, L5-S1 – 10%
*	pseudofolliculitis barbae – 0%
*	hypertension – 10%
*	residuals, nasal septoplasty and bilateral inferior partial turbinectomies – 0%
*	chondromalacia, right knee – 0%
*	blepharitis – 0%
*	lattice degeneration and hypertensive retinopathy, both eyes – 0%

9.  In his previous request for correction of his records in AR1999028594, on 9 February 
2000, the Board considered his application under procedures established by the 
Secretary of the Army. His request was denied.

10.  The Army rates only conditions determined to be physically unfitting at the time of 
discharge, which disqualify the Soldier from further military service. The Army disability 
rating is to compensate the individual for the loss of a military career. The VA does not 
have authority or responsibility for determining physical fitness for military service. The 
VA may compensate the individual for loss of civilian employability.

11.  Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation 
for disabilities which were incurred in or aggravated by active military service.  However, 
an award of a VA rating does not establish an error or injustice on the part of the Army.

12.  Title 38, Code of Federal Regulations, Part IV is the VA Schedule for Rating 
Disabilities (VASRD). The VA awards disability ratings to veterans for service-
connected conditions, including those conditions detected after discharge. As a result, 
the VA, operating under different policies, may award a disability rating where the Army 
did not find the member to be unfit to perform his duties. 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.


13.  MEDICAL REVIEW:

    a.  The Army Review Boards Agency (ARBA) Medical Advisor was asked to review 
this case.  Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, the military electronic medical record (AHLTA), the VA 
electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the 
Medical Electronic Data Care History and Readiness Tracking (MEDCHART) 
application, and/or the Interactive Personnel Electronic Records Management System 
(iPERMS).  The ARBA Medical Advisor made the following findings and 
recommendations: 
    b.  The applicant is applying to the ABCMR requesting an increase in his military 
disability rating with a subsequent change in his disability discharge disposition from 
separated with disability severance pay to permanent retirement for physical disability.  
Stated on his DD form 149:
“I would like for the Board reconsider my discharge MEB/w severance pay to 
retirement with 30%.  1) Lumbar degenerative disc disease 20% severance pay 
was given in 1999.  It should have been:  2) Lumbar degenerative disc disease 
with right paracentral herniated pulposus with intraspinal extradural cyst.”
    c.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  The applicant’s DD 214 for the period of Service under 
consideration shows he entered the regular Army on 15 November 1988 and was 
separated with $34,926.00 of disability severance pay on 18 April 1999 under provisions 
in paragraph 4-24b(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or 
Separation (1 September 1990).  

    d.  In July 1999, a medical evaluation board (MEB) determined the applicant had two 
conditions which failed the medical retention standards in chapter 3 of AR 40-501, 
Standards of Medical Fitness: “Lumbar degenerative disc disease” and “Bilateral stress 
reaction, right and left tibia with stress fracture of the right tibia.

    e.  The MEB Narrative Summary shows he with primary duty limiting conditions were 
his low back and right leg pain:

“HISTORY OF PRESENT ILLNESS:  The patient is a 30-year-old male who was 
in good health until 1989 when the patient noticed back pain while he was doing 
physical training at Ft. Sam Houston, TX.  The patient noted at the time that the 
pain would radiate to his lower extremities.  The patient [had] worsening of back 
pain in 1993 when he was involved in a motor vehicle accident while traveling 
from home to work … 

The patient sustained an injury to his right leg in 1996.  He had a stress fracture 
of his right tibia.  He was treated with non-weightbearing and physical therapy, 
however, he was had persistent right leg pain which interferes with his military 
duties as well as activities of daily living.

ORTHOPEDIC PHYSICAL EXAMINATION:  The patient has tenderness to 
palpation along the medical border of the right tibia with some mild swelling.  He 
has tenderness to palpation of the lower lumbar spine … The patient has limited 
lumbar mobility.  On forward bending, he can touch his knees which reproduced 
his pain …

LABORATORY AND RADIOLOGY FININGS: Radiographs of the lumbar spine 
show some sclerosis at the L5/S1 facet joint and sacralization of L5.  Current 
radiographs of the right leg are normal.  Bone scan findings show a stress 
fracture of the right tibia.  Stress changes were also noted in the left tibia.  MRI 
scan of the lumbar spine shows degenerative disc disease of L4/L5 and L5/S1 
disc spaces.

DIAGNOSES: 1.  Lumbar degenerative disc disease.
 2.  Bilateral stress reaction, right and left tibia with stress fracture  
of right tibia.

    f.  On 22 January 1999, the applicant’s informal physical evaluation board (PEB) 
found both conditions to be unfitting but combined them into one disability: “Back and 
bilateral leg pain with findings of lumbar degenerative disc disease and bilateral stress 
reactions of the right and left tibia and stress fracture of the right tibia.” 

    g.  Using the VA Schedule for Rating Disabilities (VASRD), they errantly derived a 
single rating of 20% and then recommended he be separated with disability severance 
pay for a combined disability rating of less than 30%.
    h.  The VA Schedule for Rating Disabilities (VASRD) is the document used by the 
military services to rate unfitting military disabilities.  Paragraph B-1a and B1b of 
Appendix B to AR 635-40, Physical Evaluation for Retention, Retirement, or Separation 
(1 September 1990):
Congress established the VASRD as the standard under which percentage rating 
decisions are to be made for disabled military personnel.  Such decisions are to 
be made according to Title IV of the Career Compensation Act of 1949 (Title IV is 
now mainly codified in chap 61 of Title 10, United States Code). 
Percentage ratings in the VASRD represent the average loss in earning capacity 
resulting from these diseases and injuries. The ratings also represent the 
residual effects of these health impairments on civil occupations.
    i.  For the applicant’s inappropriately combined conditions, the PEB rated the 
condition under diagnostic code 5099-5003 appearing to have applied paragraph B-24f 
of Appendix B to AR 635-40:
“Often a soldier will be found unfit for any variety of diagnosed conditions which 
are rated essentially for pain.  Inasmuch as there are no objective medical 
laboratory testing procedures used 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 (para B-8) 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.”
    j.  38 CFR §4.59 of the VASRD allows consideration of functional loss due to painful 
motion to be rated to at least the minimum compensable rating for a particular joint.  In 
these circumstances, painful motion of the major joint (e.g., hip, knee, and shoulder) or 
collection of smaller joints (e.g., the wrist or foot) is assigned the minimum compensable 
evaluation of 10 percent.  

    k.  Because there is no VASRD code for pain, an analogous rating is applied per § 
4.20 of Part 4 of Title 38:

“When an unlisted condition is encountered it will be permissible to rate under a 
closely related disease or injury in which not only the functions affected, but the 
anatomical localization and symptomatology are closely analogous.”

    l.  The applicant’s right leg stress fracture for which the PEB found him unfit should 
have been rated separately and not have been lumped together into one disability with 
his low back pain.   Because the VASRD is the guiding document, a 10% evaluation 
should have been assigned for objective evidence of painful motion. 

    m.  The VA’s Disability Ratings Activity Sites have personnel thoroughly trained in the 
derivation of disability ratings using the VASRD.  JLV shows the applicant’s low back 
condition was rated at 20% effective 15 March 2000.  It shows he currently has a 10 
rating for limited flexion of his right knee which he initially received on 19 April 1999.

    n.  It is the opinion of the ARBA Medical Advisor the PEB’s combination of his right 
tibia stress fracture with his lumbar condition was inappropriate and detrimental to the 
applicant.  There are two recommended courses of action:
    (1)  Apply a 10% disability rating for his right tibia stress fracture and permanently 
retire the applicant for physical disability effective 19 April 1999.
    (2)  Refer the case to the United States Army Physical Disability Agency (Not the 
OTSG) for a review of his disability ratings.

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that partial relief was warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation. Upon review of the applicant’s petition and available military records, the 
Board concurred with the advising official finding the PEB’s combination of his right tibia 
stress fracture with his lumbar condition was inappropriate and detrimental to the 
applicant. As such, the applicant’s case should be referred to the United States Army 
Physical Disability Agency (Not the OTSG) for a review of his disability ratings. Based 
on the medical opine, the Board determined there is sufficient evidence to grant partial 
relief. 


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

xx	xx	xx	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


?
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief. As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by directing 
the applicant case be referred to the United States Army Physical Disability Agency (Not 
the OTSG) for a review of his disability ratings. 

2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief. As a result, the Board recommends denial of so much of 
the application that pertains to correction of the applicant’s DA Form 199 (Physical 
Evaluation Board (PEB) Proceedings) to show a disability rating of at least 30% 
resulting in his retirement for physical disability instead of discharge with severance pay.
	 
I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.


REFERENCES:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of 
military records must be filed within 3 years after discovery of the alleged error or 
injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to 
timely file within the 3-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.

2.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments 
with authority to retire or discharge a member if they find the member unfit to perform 
military duties because of physical disability. The U.S. Army Physical Disability Agency 
is responsible for administering the Army physical disability evaluation system and 
executes Secretary of the Army decision-making authority as directed by Congress in 
chapter 61 and in accordance with DoD Directive 1332.18 and Army Regulation 635-40.

3.  Army Regulation (AR) 635-40 establishes the Army 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.

	a.  The disability evaluation assessment process involves two distinct stages: the 
MEB and PEB. The purpose of the MEB is to determine whether the service member's 
injury or illness is severe enough to compromise his or her ability to return to full duty 
based on the job specialty designation of the branch of service. A PEB is an 
administrative body possessing the authority to determine whether a service member is 
fit for duty. A designation of "unfit for duty" is required before an individual can be 
separated from the military because of an injury or medical condition.

	b.  Service members whose medical condition did not exist prior to service who are 
determined to be unfit for duty due to disability are either separated from the military or 
are permanently retired, depending on the severity of the disability. Individuals who are 
"separated" receive a one-time severance payment, while veterans who retire based 
upon disability receive monthly military retired pay and have access to all other benefits 
afforded to military retirees.

	c.  The mere presence of a medical impairment does not in and of itself justify a 
finding of unfitness. In each case, it is necessary to compare the nature and degree of 
physical disability present with the requirements of the duties the Soldier may 
reasonably be expected to perform because of his or her office, grade, rank, or rating. A 
Soldier is physically unfit when medical impairment prevents reasonable performance of 
the duties required of the Soldier's office, grade, rank, or rating.

	d.  The percentage assigned to a medical defect or condition is the disability rating. 
A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. 
Ratings are assigned from the VASRD. The fact that a Soldier has a condition listed in 
the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable 
condition is one which renders the Soldier unable to perform the duties of his or her 
office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or 
her employment on active duty.

	e.  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 or defects and those which contribute to unfitness will be considered 
in arriving at the rated degree of incapacity warranting retirement or separation for 
disability.

4.  AR 635-40, Appendix B, paragraph B-24f, of the regulation in effect at the time, 
states often a Soldier will be found unfit for any variety of diagnosed conditions which 
are rated essentially for pain. Inasmuch as there are no objective medical laboratory 
testing procedures used 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% 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. (Severe eye 
pain is an exception).

5.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a 
member who has at least 20 years of service or a disability rating of at least 30% 
percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation 
of a member who has less than 20 years of service and a disability rating of less than 
30%.

6.  Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure 
that an applicant seeking corrective action by ARBA be provided with a copy of any 
correspondence and communications (including summaries of verbal communications) 
to or from the Agency with anyone outside the Agency that directly pertains to or has 
material effect on the applicant's case, except as authorized by statute. ARBA medical 
advisory opinions and reviews are authored by ARBA civilian and military medical and 
behavioral health professionals and are therefore internal agency work product. 
Accordingly, ARBA does not routinely provide copies of ARBA Medical Office 
recommendations, opinions (including advisory opinions), and reviews to ABCMR 
applicants (and/or their counsel) prior to adjudication.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230004954


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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