RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 May 2007
      DOCKET NUMBER:  AR20070000053


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Donald L. Lewy                |     |Member               |
|     |Mr. Roland S. Venable             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his physical disability rating be raised.

2.  The applicant states he injured his left leg and right foot in Iraq.
His leg was put back together at Walter Reed Army Medical Center and he was
sent to Fort Campbell, KY for rehabilitation.  Physical rehabilitation did
not do any good due to the fact that his leg was not healing.  His leg
developed a few open sores that were temporarily taken care of.  On 4
August 2004, he was finally discharged with a 20 percent disability rating.
 A month later he went to the local Department of Veterans Affairs (VA)
clinic where he was diagnosed with having an osteomyelitis infection.  He
was hospitalized and received six weeks of intravenous antibiotics.

3.  The applicant states following his treatment he was sent to see a
specialist for his leg.  He was given the choice to undergo any number of
reconstructive surgeries to repair the damage from the infection or to
undergo amputation of his leg below the knee.  Due to the fact that with
the reconstructive surgery there was still a possibility the infection
could have still been in his leg, he elected to go with the amputation.  On
2 November 2004, his left leg was amputated below the knee.  The first
prosthetic leg was made a shade too short, resulting in some major back
pain which he still has.  He is being treated by the VA, and everything he
needs for his prosthetic has to be preapproved by the VA.  He can walk with
the prosthetic leg he now has, but it causes him quite a bit of pain daily,
not to mention that he still has a bit of a limp.  Before the accident he
would go for a daily run.  He cannot run with this leg.  Also, he believes
his wife wanted a divorce because she could no longer deal with his
physical appearance.  He has three kids to take care of and his current
disability percentage is making life very difficult.

4.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in Operation Iraqi Freedom.

2.  After having had prior service in the Regular Army and U. S. Army
Reserve, the applicant enlisted in the Army National Guard on 16 October
1996.  He was ordered to active duty on 24 January 2003 and arrived in Iraq
on or about          23 March 2003.  He was promoted to Staff Sergeant, E-6
on 24 March 2003.

3.  In late April 2003, the applicant sustained open fractures to his left
tibia and a right foot metatarsal fracture in a motor vehicle accident.

4.  A Narrative Summary and Patient Discharge Instructions document,
discharge date 29 May 2003, shows that on 13 May 2003 the applicant slipped
on his crutches, causing some bleeding from the original injury site at his
left ankle and a small amount of new displacement, but no additional
intervention was indicated.  On 24 May 2003, a small amount of infection
was noted at one pin site and the applicant was started on oral
diclox[acillin] (an antibiotic used to treat certain bacterial infections)
for 14 days.  His discharge was delayed due to administrative issues.  Upon
discharge, the applicant remained afebrile (no fever) and was ambulating
independently with crutches.  He was instructed to report to his local
emergency room for any signs of infection such as a fever greater than 101
degrees, nausea/vomiting, increased pain and redness at incision sites, or
drainage of pus from incision sites.

5.  Medical records dated 23 September 2003 indicated no purulent discharge
was noted.

6.  A Narrative Summary and Patient Discharge Instructions document,
discharge date 5 November 2003, shows the applicant was tolerating a
regular diet, pain was well-controlled on oral medications, he had normal
bowel and bladder function, and he was afebrile with no sign of infection
upon discharge.  The applicant was given special instructions to return to
the hospital for fevers greater than 101.5 degrees, chills, warmth or
redness around the wound, increased pain or numbness, or other concerning
symptoms.

7.  Medical records dated 7 November 2003 indicated there was no sign of
infection.

8.  Medical records dated 12 December 2003 indicated there was no discharge
and no evidence of infection.

9.  Medical records dated 3 March 2004 indicated there was no sign of
infection.

10.   Progress Notes dated 8 March 2004 indicated the applicant was seen
for an interim follow up.  His external fixation device had been removed on
19 February 2004 and replaced with a short leg cast for two weeks.  He was
now on a cam walker, to bear weight as tolerated.  No fever or chills was
noted.

11.  The applicant’s Medical Evaluation Board (MEB) Narrative Summary (date
of physical examination 5 May 2004) stated that, after undergoing fixation
of the fractures, bone grafting, treatment of the open wound, and
undergoing physical therapy for ankle range of motion and strengthening,
the applicant complained of pain and ankle stiffness.  His pain intensity
was described as slight and occasional in frequency but the intensity could
increase to moderate and frequent in frequency with some activities.

12.  A physical examination of the applicant revealed no effusion of the
left knee. Range of motion was from zero to 135 degrees.  There was
negative crepitance. The femoral condyle was nontender.  There was no joint
line tenderness.  All tests were negative or within normal limits.  Soft
tissue from the previous open tibial wound was healed.  There was slight
erythema (redness) for which he was treated [for] cellulitis (a deep
infection of the skin).  Left ankle dorsiflexion was up to neutral.
Plantar flexion was up to five degrees.  Previous metatarsal fracture site
was nontender.  The Lisfranc joint was stable to stress.  Sensory was
grossly intact in all distributions distally.  Strength of the knee, with
extension and flexion, was 5 out of 5 and equal bilaterally.  Ankle
dorsiflexion and plantar flexion strength was about 3 out of 5 secondary to
pain.  He was able to move his toes spontaneously.  Capillary refill was
less than two seconds.

13.  X-rays revealed a healing tibial fracture with callus formation.  The
metatarsal fracture was healed from the second to the fourth metatarsal.
There was generalized osteopenia (decrease in the amount of calcium and
phosphorus in the bone) noted in the foot.  Decreased ankle joint space was
consistent with post-traumatic changes.

14.  The applicant was diagnosed with (1) left open tibial fracture with
soft tissue injury; status post open reduction internal fixation, Ilizarov
external fixation and bone grafting; (2) left foot metatarsal fracture;
status post closed reduction with percutaneious pinning and fasciotomy; and
(3) post-traumatic degenerative changes to the ankle joint.  On 27 May
2004, the MEB referred him to a Physical Evaluation Board (PEB) for these
three diagnoses.  On 18 June 2004, the applicant agreed with the MEB’s
findings and recommendation.

15.  On 18 June 2004, the applicant signed a Texas Physical Evaluation
Board Fact Sheet acknowledging that he was informed, in part, that the
Army’s ratings were permanent upon final disposition, but the VA’s rating
could fluctuate with time.

16.  On 22 June 2004, an informal PEB found the applicant to be unfit due
to diagnoses 1 and 3 (under Department of Veterans Affairs Schedule for
Rating Disabilities (VASRD) code 5271), with a 20 percent disability
rating, and diagnosis 2 (chronic pain left foot, due to metatarsal
fracture, rated as minimal/occasional, rated for pain), with a zero percent
disability rating.  The informal PEB recommended he be separated with
severance pay.  On 3 July 2004, the applicant concurred and waived a formal
hearing of his case.

17.  On 4 August 2004, the applicant was discharged due to disability, with
severance pay, after completing a total of 5 years, 6 months, and 18 days
of creditable active service.  On 5 August 2004, he was discharged from the
Army National Guard of Michigan and as a Reserve of the Army due to being
medically unfit for retention after completing a total of 10 years, 9
months, and 14 days of service for retired pay.

18.  On 23 August 2004, the applicant was seen by the VA, and he was
diagnosed with osteomyelitis.

19.  A Progress Note, dated 8 September 2004, indicated the applicant was
evaluated for left distal tibia/ankle infected non-union with chronic
osteomyelitis.  After an attempt at bone grafting in November 2003 and a
total of 9 months in an external fixator, he subsequently had multiple
draining wounds from his left ankle, persistent pain in the anterior ankle
and mid-foot, and inability to bear weight.

20.  On 2 November 2004, the applicant underwent a left below-knee
amputation.

21.  In the processing of this case, an advisory opinion was obtained from
the   U. S. Army Physical Disability Agency.  The advisory opinion noted
that it was not clear if the applicant was seeking an increase in his Army
physical disability rating for both back pain and amputation or just the
back pain; however, it noted that in either case the condition he now has
was not present during his time in service and is not compensable by the
military.  The advisory opinion noted that the applicant’s fractures healed
but with resulting residual pain and limitation of motion of the ankle.  In
June 2004, an informal PEB found him unfit for this limitation of ankle
motion and for foot pain, with a combined disability rating of   20
percent, and the applicant concurred with the finding.

22.  The advisory opinion noted that after the applicant’s release from the
military he began to experience additional pain.  Given a choice to either
have additional reconstructive surgery or amputate his foot and have a
prosthetic foot, the applicant chose amputation.  He now is left with the
normal residuals of pain in the amputation area and back pain from an
altered gait while getting used to the amputation and new prosthetic.  The
advisory opinion noted that the PEB’s findings were correct, and the
applicant waived his right to a formal hearing.  Conditions that become
worse after separation or those that are changed due to an applicant’s
choice of treatment after separation cannot be the responsibility of the
military, nor do they require a change in disability findings that were
correct when an applicant leaves the military.  The advisory opinion noted
that it was unfortunate that the applicant’s choice after leaving the
military resulted in additional pain and loss of his foot.  However, his
present condition is the responsibility of the VA and the PEB’s findings
should not be changed.

23.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He did not respond within the given time frame.

24.  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.
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.

25.  The VASRD gives code 5000, osteomyelitis a 10 percent rating when it
is inactive, following repeated episodes, without evidence of active
infection in the past 5 years; a 20 percent rating when there is a
discharging sinus or other evidence of active infection within the past 5
years; a 30 percent rating when there is definite involucrum or sequestrum,
with or without discharging sinus; a    60 percent rating when there are
frequent episodes, with constitutional symptoms; and a 100 percent rating
when it involves the pelvis, vertebrae, or extends into major joints, or
has multiple locations or a long history of intractability and debility,
anemia, amyloid liver changes, or other continuous constitutional symptoms.

26.  The VASRD also notes that the 20 percent rating on the basis of
activity within the past 5 years is not assignable following the initial
infection of active osteomyelitis with no subsequent reactivation.  The
prerequisite for this historical rating is an established recurrent
osteomyelitis.  To qualify for the 10 percent rating, two or more episodes
following the initial infection are required.

27.  The VASRD gives code 5271 (limited motion of the ankle) a 10 percent
rating when limited motion is moderate and a 20 percent rating when limited
motion is marked.

28.  Title 38, U. S. Code, sections 1110 and 1131, permits the VA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.
DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant’s medical condition was listed under the
correct VASRD.  The MEB Narrative Summary indicated that his tibial
fracture was healing and his metatarsal fracture was healed from the second
to the fourth metatarsal.  There was no evidence to show there was a
malunion or nonunion of the bones at the time of his separation from the
Army.  The applicant did concur with the findings of the MEB.

2.  The informal PEB found the applicant to be unfit under VASRD code 5271
(limited motion of the ankle) with a 20 percent disability rating (the
maximum provided for by that code) and for chronic left foot pain, rated as
minimal/occasional, with a zero percent disability rating.  The applicant
did concur with the findings of the informal PEB on 3 July 2004 and waived
a formal hearing of his case.

3.  The applicant was thereupon discharged from the Army, on 4 August 2004,
with severance pay.

4.  On 23 August 2004, the applicant was seen by the VA, and he was
diagnosed with osteomyelitis.

5.  Consideration has been given to the possibility that the applicant had
osteomyelitis prior to his 4 August 2004 discharge from the Army.
Unfortunately, there is insufficient evidence of record to show the
applicant’s osteomyelitis developed while he was on active duty.

6.  On 24 May 2003, a small amount of infection was noted at one pin site
and the applicant was started on an oral antibiotic.  However, subsequent
medical records (dated 23 September 2003, 7 November 2003, 12 December
2003, and 3 March 2004) indicated there was no sign purulent discharge or
of infection.  These records are a sign that Army doctors were on the
lookout for indications of osteomyelitis, which further appears to confirm
that the applicant’s 24 May 2003 infection at the pin site was a skin
infection and not a bone infection.

7.  The May 2004 MEB Narrative Summary also indicated that there was slight
erythema, for which the applicant was treated for cellulitis.  This appears
to have been a reference to a current infection, rather than to the 24 May
2003 infection.  However, again it appears that this infection was a skin
infection and not a bone infection.

8.  The VASRD states that the 20 percent rating for osteomyelitis on the
basis of activity within the past 5 years is not assignable following the
initial infection of active osteomyelitis with no subsequent reactivation,
and the prerequisite for this historical rating is an established recurrent
osteomyelitis.  Regrettably, there is insufficient evidence to show the
applicant’s two recorded infections were established recurrent
osteomyelitis episodes (and not simply skin infections).

9.  To qualify for the 10 percent rating, two or more osteomyelitis
episodes following the initial infection are required.  Therefore, even if
the applicant’s May 2003 and May 2004 infections had been found to be
osteomyelitis, he would not have qualified for the 10 percent rating.

10.  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.

11.  It is acknowledged that the applicant was diagnosed with osteomyelitis
by the VA shortly after he was discharged from the Army and as a result he
lost his lower left leg to amputation.  However, the Army’s rating is
dependent on the applicant’s condition at the time he separated.  Again,
there is insufficient evidence to show that the applicant met the
requirements to be rated for osteomyelitis by the Army.  The VA has the
responsibility and jurisdiction to recognize any changes in his condition,
or any new conditions that may arise, that develop over time by adjusting
the member’s disability rating.

12.  Regrettably, there is insufficient evidence that would warrant
increasing the applicant’s disability rating.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wfc___  __dll___  __rsv___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  __William F. Crain____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000053                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070531                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |108.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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