MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 July 2003
         DOCKET NUMBER: AR2003089816

         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 L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Patrick H. McGann		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 records be corrected to show he was placed on the Temporary Disability Retired List (TDRL) and then was retired permanently for a physical disability.

APPLICANT STATES: That he was in the Army for over 6 years when he twice underwent unsuccessful bunion surgery. He entered surgery expecting that the doctor would cure his bunion problem. Instead, the surgery caused him pain, numbness, and tingling. He was then discharged without receiving a disability rating. He provides his service medical records, his physical disability proceedings packet, his DD From 214 (Certificate of Discharge or Release from Active Duty), and his Department of Veterans Affairs (VA) Rating Decision as supporting evidence.

EVIDENCE OF RECORD: The applicant's Official Military Personnel File is not available. Information obtained from documents provided by the applicant show:

He enlisted in the Regular Army on 10 February 1994. His enlistment physical apparently indicated he had asymptomatic bilateral bunions upon entry. He completed basic training and advanced individual training and was awarded military occupational specialty 77F (Petroleum Supply Specialist).

On 6 July 1994, the applicant was assigned to Headquarters and Headquarters Troop, 2d Squadron, 3d Armored Cavalry Regiment, Fort Bliss, TX. The unit was reassigned to Fort Carson, CO, around January 1996.

In April 1996, the applicant injured his toes while running. In July 1996, he was scheduled for right foot surgery to correct a bunion problem. He was made aware of the risks, benefits, and rehabilitation and elected to proceed with the surgery.

Around April 1997, the applicant was reassigned to the 725th Main Support Battalion, Schofield Barracks, HI.

In October 1998, the applicant was scheduled for left foot surgery. He was briefed on the risks versus the benefits of the procedure and consented to the procedure.

On 3 February 2000, the applicant underwent a medical evaluation board (MEB) examination for a chief complaint of painful bunion deformities on both feet. The MEB Narrative Summary noted that he entered active duty in February 1994 with an EPTS (existed prior to service) condition of hallux valgus (bunion), bilateral, and mild asymptomatic pes planus (flat feet), bilateral. His hallux valgus first became symptomatic after he fell during a run in April 1996. He was originally recommended for an MEB in 1997 but it was placed on hold pending further surgery in 1998. The Narrative Summary noted that the applicant reached maximum improvement with previous treatment and further treatment was not indicated. He was diagnosed with hallux valgus, left foot (EPTS) with severe arthritic changes; hallux valgus, right foot (EPTS) moderately severe; and floating first and second toe, right foot (in line of duty). The examining physician originally concluded that the applicant had an EPTS condition which progressed beyond its normal rate of progression and therefore was aggravated by active duty service.

The case was returned by the U. S. Army Physical Evaluation Board, Tacoma, WA for a scientific explanation of the mechanism of the injury that caused permanent service aggravation, above and beyond the normal rate of progression, to the applicant's EPTS condition. The Narrative Summary was then amended to delete the reference to the applicant's EPTS condition being aggravated by service.

The MEB referred the applicant to a physical evaluation board (PEB). On 4 April 2000, the applicant concurred with the MEB's findings and recommendation.

On 31 May 2000, an informal PEB found the applicant unfit for service due to bilateral foot pain secondary to bilateral hallux valgus and resulting bunion clearly identified on his enlistment physical examination. The PEB noted the applicant's foot pain was due to congenital conditions (EPTS) and should not be rated unless service aggravation could be clearly documented. The PEB recommended his separation without disability benefits. On 6 June 2000, the applicant nonconcurred in the informal PEB's recommendation and demanded a formal hearing.

On 29 June 2000, a formal PEB found the applicant unfit for service for the same reasons as found by the informal PEB and with the same recommendation. On 9 July 2000, the applicant concurred in the formal PEB's recommendation.

On 7 September 2000, the applicant was discharged due to an EPTS disability after a PEB. He had completed 6 years, 6 months, and 28 days of creditable active service.

On 26 March 2001, the VA awarded the applicant a 40 percent combined disability rating for tender surgical scar of the right foot (10 percent); tender surgical scar of the left foot (10 percent); status post bunionectomy of the left foot (10 percent); and 10 percent status post bunionectomy of right foot and post toe shortening attempt with floating toe (10 percent).

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 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 purpose of his employment on active duty. Appendix B, paragraph 10 states that when considering EPTS cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, less natural progression occurring during active service. This will apply whether the particular condition was noted at the time of entrance into active service or is determined upon the evidence of record or accepted medical principles to have existed at that time. Hereditary, congenital and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service-aggravated complications are clearly documented.

Army Regulation 635-40, Appendix B, paragraph 5 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, paragraph 3-3c, states that unexpected adverse effects, over and above known hazards, directly attributable to treatment or an operation performed for a disease or medical condition existing before entry on active duty may be considered service aggravation.

Army Regulation 635-40, paragraph 3-7, 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. Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement.

Army Regulation 635-40 also 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. .

The VA Schedule for Rating Disabilities (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.

The VASRD gives code 5280 (unilateral hallux valgus) a 10 percent disability rating when severe, if equivalent to amputation of the great toe, or with resection of the metatarsal head.

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.

Title 10, U. S. Code, section 1212(c) states that the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the VA. Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

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. There is no evidence to show that the worsening of the applicant's EPTS bunions was not the result of natural progression. The evidence shows he was made aware that there were some risks in the two operations he underwent. The Board therefore concludes that the PEB made a proper determination that there were no unexpected adverse effects from the operations that could cause his condition to be considered service aggravated.

3. The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army. 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.

4. In addition, the VA is not obligated to follow the prohibition against pyramiding as is the Army. The VA awarded the applicant a 40 percent combined disability rating for two conditions of each foot, each condition rated as 10 percent disabling. Had the applicant's condition not been found to be EPTS, the prohibition against pyramiding would have constrained the Army to rating only one each of the applicant's foot conditions, for a possible maximum disability rating of 20 percent. Since there is no evidence to show the applicant's conditions were not permanent and stable, he would not have met the eligibility criteria to be placed on the TDRL. The most he would have received would have been separation with severance pay.

5. Furthermore, if the applicant had received disability severance pay from the Army, that severance pay would have been offset by the VA.

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

__rvo___ __kan___ __phm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003089816
SUFFIX
RECON
DATE BOARDED	20030703
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	108.00
2.
3.
4.
5.
6.