MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 4 March 1998
         DOCKET NUMBER: AC97-09048

         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. The following members, a quorum, were present:

Ms.	Karen J. Newsome		Chairperson
Mr.	Raymond V. O’Connor, Jr.		Member
Ms.	Margaret K. Patterson		Member

         Also present, without vote, were:

Mr.	Karl F. Schneider		Acting Director
Ms.	Deyon D. Battle		Analyst

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         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)

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APPLICANT REQUESTS: Medical Retirement.

APPLICANT STATES: That there was an error in the reduction of his disability percentage while he was on the Temporary Disability Retirement List (TDRL) and that he should have been medically retired. He states that he still has pain in his chest and that he should have also been rated for his shoulder, arm, neck, hand, back, knee, stress, depression, nerves, head, and pericarditis.

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

On 4 October 1990 he enlisted in the Army in the pay grade of E-1 for 4 years.

During basic combat training, the applicant sustained a severe injury to his right foot and ankle during a running road march on a dirt road when he stepped in a 12 inch hole. With his full weight bearing on his right foot he sustained a sever inversion-twisting motion on the planted foot. This resulted in severe pain swelling, and impaired function of the right foot and ankle.

On the following morning, the applicant was seen in the troop medical center and was diagnosed as having a sprained ankle. Two weeks after the incident he was given crutches for support and assistance in ambulation. He was seen on many occasions between October 1990 and December 1990 in the troop medical facility and he continued to be told that he had an ankle sprain and no further treatment was provided. He was also told that he had bilateral flat feet.

In December 1990 he was diagnosed as having an inversion deformity of the right foot, which was produced whenever he performed weight bearing exercises. Shortly thereafter, he was examined by an orthopedic specialist who told him that he had a posterior tibial tendon rupture and he was placed in a short leg cast for approximately two days while in transit to Fitzsimmons Army Medical Center, Orthopedic Service for further evaluation and treatment.

The applicant had exploratory surgery on his right ankle on 1 January 1991 and had no abnormalities seen. He was initially placed on non-weight bearing profile after surgery then later placed in a walking cast. In the latter part of February 1991 he started placing weight on the right leg with walking. Shortly after that, he developed chronic right knee pain.

Because of the lack of improvement in his condition, the applicant underwent a second surgery (tendon transfer) on his right foot on 29 April 1991. After surgery he was placed in rehabilitation.

The applicant was hospitalized on 25 October 1991 for an episode of acute anterior chest pain with onset. Based on clinical findings it was suspected that his condition was due to acute pericarditis. His physical examination was negative for friction-rub and his echocardiogram was within normal limits. He was treated and the acute condition was resolved.

On 17 January 1992, the applicant was referred for evaluation of right knee pain. He was found to be negative for effusion, negative for joint-line tenderness, and negative for joint laxity. There was a positive finding of a grid sensation. The x-ray of his right knee showed that he was within the normal limits.

The applicant underwent a medical examination on 16 February 1992. He indicated that his health was very poor, that his ankle was hurting and deformed, and that he was also having back and knee pain. It was recommended that he be referred to a Medical Evaluation Board (MEB).

The MEB was conducted on 13 May 1992 and completed with three diagnosis relating to his right ankle and foot and one relating to acute anterior chest pain, resolved. He was found unfit in accordance with Army Regulation 40-501 and referred to a Physical Evaluation Board (PEB). On 26 May 1992 the applicant concurred with the findings of the MEB.

On 3 August 1992 an informal PEB convened and found the applicant unfit for the right foot/ankle diagnoses and rated his disability at 30 percent with placement on the Temporary Disability Retired List (TDRL). The PEB determined that the diagnosis concerning the resolved chest pain was neither unfitting nor compensable.

On 7 August 1992 the applicant concurred with the findings and recommendation of the PEB and waived his right to a formal hearing of his case. He was medically retired on 18 September 1992 under the provisions of Army Regulation 635-40 and placed on the TDRL. He had completed 1 year, 11 months and 15 days of total active service.

An informal PEB convened on 23 September 1993. The PEB determined that the applicant’s impairment had stabilized and decreased his rating to 10 percent. The applicant noncurred with the determination and demanded a formal hearing.

On 10 November 1993, in a formal hearing, the PEB rated the applicant at 20 percent and recommended separation with severance pay. The applicant nonconcurred with the decision and submitted an appeal stating that his rating should be higher for his ankle/foot and for his mental condition.

The PEB reviewed the applicant’s appeal and affirmed the findings of 20 percent. On 24 November 1993 the Physical Disability Agency (PDA) affirmed the PEB findings. On 2 March 1994, he was removed from the TDRL and separated with severance pay.

On 4 November 1997 the Physical Disability Agency reviewed the records and found no evidence of error or injustice. Denial of the applicant's request was recommended (COPY ATTACHED).

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. The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and rated at the time of his discharge.

2. The foregoing is supported by the opinion from the Physical Disability Agency.

3. The applicant’s contention that he had other impairments that should have also been rated by the PEB is unsupported by the evidence of record. There were no other diagnoses before the PEB at that time and the medical reevaluation had been concurred with by the applicant. To be compensable, the disabilities would have had to been found unfitting at the time the he was placed on the TDRL while he was entitled to basic pay.

4. No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment received in service.

5. The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

6. 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