MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 October 2001
         DOCKET NUMBER: AR2001058897

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Shirley L. Powell		Chairperson
Mr. Allen L. Raub		Member
Mr. Thomas E. O’Shaughnessy, 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)

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APPLICANT REQUESTS: That his physical disability discharge be changed to a medical retirement. He states that the VA has rated him at 30 percent. There is no reversible solution to his problem. He provides no supporting evidence.

COUNSEL CONTENDS: Counsel makes no additional contention.

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

He enlisted in the Regular Army on 2 October 1989. He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

The applicant’s Medical Evaluation Board (MEB) Narrative Summary shows that in November 1990 he fell during a road march, striking the front of his right shin on the hard road. He reportedly was treated for a shin bruise with elevation, ice, and bed rest. As there was a gap in his medical records from August until after his surgery in November 1990, the MEB could not confirm the initial diagnosis or treatment. Over a long holiday weekend, the applicant experienced pain and swelling. He was referred to a civilian orthopedist. That day he underwent surgery for the diagnosis of right anterior lateral compartment syndrome (rapid swelling, increased tension, pain, and ischemic necrosis of the muscles of the anterior tibial compartment of the leg; the skin becomes glossy, red, and bloated as the necrosis occurs). He was placed in an ankle/foot orthosis. It was noted on 28 January 1991 that he was gaining in some dorsiflexion and strength but he still exhibited no extensor activity of the right great toe and was starting to develop a deformity of that toe. In March 1991, it was felt he would need surgical correction of the flexion contracture of the big toe and that he would never be able to function satisfactorily in the Army. He deferred to have further treatment until he was released from the Army and would seek care in the VA system. Since his surgery he continued to wear the orthosis, gained only partial ambulation with crutches on that foot and continued to receive physical therapy with slight improvement.

On 24 June 1991, the MEB diagnosed the applicant with status/post acute anterior compartment syndrome of the right leg, status/post release with a loss of function of the extensor hallucis longus tendon and contracture of the flexor tendon of the big toe. He also had only partial use of his tibialis anterior musculature, both related to residual nerve damage secondary to the compartment syndrome. He was referred to a Physical Evaluation Board (PEB).
On 1 July 1991, the applicant agreed with the MEB’s findings and recommendation.

On 12 July 1991, a PEB found the applicant unfit for duty by reason of the MEB’s diagnosis under VA Schedule of Rating Disabilities (VASRD) codes 5312/5310 with a 20 percent disability rating. On 26 July 1991, the applicant concurred in the PEB’s findings and recommendation and waived a formal hearing.

On 16 August 1991, the applicant was discharged by reason of a physical disability with severance pay. He had completed 1 year, 10 months, and 15 days of creditable active service.

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. 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.

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. Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating. 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.

VASRD code 5312 is assigned to the anterior muscles of the leg. Code 5310 is assigned to the intrinsic muscles of the foot. Code 5310 gives a 0 percent rating when the condition is slight; 10 percent with the condition is moderate; 20 percent when the condition is moderately severe; and 30 percent when the condition is severe.

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.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, 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 applicant does not provide his VA rating decision; however, any rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating. The VA, operating under its own policies and regulation, 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,

3. The applicant was partially ambulatory with the use of crutches. It appears the determination that his condition was “moderately severe” as opposed to “severe,” with a subsequent disability rating of 20 percent, was appropriate. Disability ratings are assigned based on the severity of the condition, not the permanency of the condition.

4. The Board acknowledges that the applicant also had leg problems. However, the Army is prohibited from “pyramiding.” While the applicant did have a leg condition, the condition was secondary to his foot (toe) problem and so could not receive a separate rating.

5. 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

__slp___ __alr___ __teo___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058897
SUFFIX
RECON
DATE BOARDED	20011023
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.02
2.
3.
4.
5.
6.