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Decision Text

ARMY | BCMR | CY1990-1993 | 9310560
Original file (9310560.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his 20 percent disability rating be increased to a minimum of 40 percent and that his name be place on the Permanent Disability Retired List (PDRL).
APPLICANT STATES : That the VA has properly assigned him a combined disability rating of 40 percent; 30 percent for his skeletal deformity and 10 percent for his back. The Army should award him the same percentage as the VA, which would entitle him to placement on the TDRL.

COUNSEL CONTENDS : That the applicant has adequately addressed his contentions on his application to the Board, and need not be reiterated. Counsel asks for sympathetic consideration by the Board.

EVIDENCE OF RECORD : The applicant’s military records were not provided to the Board. The evidence of record was taken from the applicant’s VA records.

While serving as a guardsman not on active duty in pay grade E-4, on 4 September 1985 a Medical Evaluation Board (MEB) was convened to determine whether the applicant was medically fit for retention due to injuries he received in a motorcycle accident while a guardsman in 1976 (his duty status at the time of his accident is not contained in the VA records provided to the Board). The MEB determined that the applicant suffered from chronic osteomyelitis (inflammation of bone) of his right ankle, sympathetic reflex dystrophy, chronic low back pain, and mild neurogenic bladder.

The applicant’s name was placed on the Temporary Disability Retired List (TDRL) on 13 November 1986 in pay grade E-5, and he was discharged from the Michigan Army National Guard.

While on the TDRL, on 11 May 1987, a second MEB evaluated the applicant, determined that his medical conditions had stabilized to the degree to allow them to be permanently rated, and referred him to a Physical Evaluation Board (PEB).

On 6 July 1987 an informal PEB was convened which determined that the applicant was medically unfit due to a limitation of motion, right ankle, status post fracture with open reduction and history of osteomyletis, with a recommended disability percentage of 10 percent; and due to low back pain, status post right lumbar sypathecting for reflex sypathetic dystrophy with history of mild neurogenic bladder, rated as characteristic pain on motion, also with a recommended disability percentage of 10 percent.

The applicant disagreed with those findings and recommendation and demanded a formal hearing.

Accordingly, on 3 September 1987 a formal PEB was convened and made the same findings and recommendation as the informal PEB.

That recommendation was approved and, on 18 December 1987, the applicant was removed from the TDRL and honorably discharged due to permanent physical disability, rated 20 percent disabled, with severance pay.

Effective 19 December 1987 the VA awarded the applicant a 40 percent combined disability rating; 30 percent for his right ankle fracture, rated under VASRD code 5299-5270, ankylosis (immobility and consolidation of a joint) of the ankle, and 10 percent for his injury to his lumbar spine with chronic lumbar strain and impaired sensation of his right lower limb.  On 4 February 1992 the VA increased the rating for his right ankle fracture to 40 percent.

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. The Army rated the applicant for his limited motion of his ankle whereas the VA rated him for immobility of that ankle.

2. The Board can only assume that the VA, in accordance with its own policies, gave the applicant the benefit of doubt when rating his ankle. That action by the VA in no way obligates the Army to change its rating.

3. In the absence of evidence to the contrary, the Board must presume that the MEB properly diagnosed the applicant and the PEB assigned him the disability rating commensurate with that diagnosis.

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

DENY APPLICATION




                                                      Karl F. Schneider
                                                      Acting Director

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