IN THE CASE OF:	  

		BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110001456 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records to show the additional 
20-percent disability rating for his right ankle condition is combat-related.

2.  The applicant states:

* the additional 20-percent disabling injury (chronic right ankle pain) that occurred in Iraq should be combat-related
* the original 10-percent disability rating for his right ankle sprain occurred at West Point
* both disabilities were combined incorrectly
* the right ankle sprain rated at 10-percent disabling was not the same injury that occurred in Iraq and the record should reflect this

3.  The applicant provides:

* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* Line of Duty (LOD) Investigation memoranda
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* letters from physicians
* medical records
* Department of Veterans Affairs documentation
* DD Form 214 (Certificate of Release or Discharge from Active Duty)



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Army National Guard on 24 July 1986.

3.  A DA Form 2173, dated 23 April 2003, states the applicant injured his right ankle while playing flag football during physical training on 25 September 2002 at West Point, NY.  The LOD investigation determined the injury was incurred in the LOD.

4.  He was ordered to active duty on 5 July 2004 from the Army National Guard in support of Operation Iraqi Freedom.  He served as a fire support specialist in Kuwait/Iraq from 27 October 2004 to 28 November 2005.

5.  His medical evaluation board (MEB) documentation is not available.  However, the U.S. Army Physical Disability Agency (USAPDA) advisory opinion states:

	a.  His 2007 MEB stated his initial foot/ankle complaints arose due to twisting his right ankle in 2002 while on active duty playing flag football.  He experienced continued pain after this and it was eventually diagnosed as tarsal coalition, an abnormal joining of the bones in the foot/ankle that is normally congenital and often is not observed until older or when an injury to that area brings attention to the defect.

	b.  The applicant had arthroscopic surgery to the affected joints in 2003 and his condition improved.  After completing another tour of active duty in 2005, he complained of bilateral hallux valgus deformities with subsequent pain and some renewed right ankle pain.

	c.  After he received bunionectomies on both feet, he "began favoring his right foot and believes this resulted in his right ankle becoming inflamed."  He then underwent a second tarsal coalition surgery in 2006.

	d.  He did not claim any specific injury to his right foot/ankle while in combat in the narrative summary of his MEB and there is no LOD relating to any specific acute injury to his right foot/ankle while on active duty in 2005.

6.  It appears the MEB referred his case to a PEB.  The USAPDA advisory opinion states the applicant concurred with the contents of his MEB in 2007.

7.  On 24 July 2007, a PEB found the applicant physically unfit due to:

	a.  chronic right ankle pain with history of arthroscopy and re-injury while deployed in Iraq.  Upon return from deployment, non-operative therapy, including physical therapy, was tried.  Reevaluation and examination noted a coalition of the calcaneal navicular joint.  The Soldier [applicant] underwent right ankle arthroscopy as well as excision of the fibrous coalition and debridement of the talar dome on 29 August 2006.  The Soldier has localized arthritis, 0 degrees eversion and 4 degrees inversion.  This is consistent with subtalar anklylosis.  This is affecting the Soldier's biomechanics.  This condition was rated 20-percent disabling; and

	b.  bilateral bunions with the left side being operated on.  The Soldier has a metatarsal osteotomy with anatomical alignment and screw fixation.  The right side has not been operated on at this time.  On 11 January 2006, the left side was operated on, and the Soldier slipped on the ice on 6 February 2006 and had swelling of the left foot.  The left side is rated 10-percent disabling and the right side is rated 0-percent disabling.  The bunions are considered to have existed prior to service and have been service aggravated.  This condition was rated 
10-percent disabling.

8.  The PEB recommended a combined disability rating of 30 percent and separation from the service with a permanent disability retirement.  Item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding That) of his DA Form 199 states the applicant's disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

9.  It appears the USAPDA approved the PEB findings and recommendations.

10.  On 1 September 2007, he was retired by reason of permanent disability.

11.  He provides a letter, dated 10 January 2007, from the Chief, Division of Foot and Ankle Surgery, University of Rochester Medical Center, NY, who states the applicant "underwent arthroscopic surgery with debridement and excision of a calcaneocuboid coalition on 29 August 2006.  I do not feel this surgery is related to the previous arthroscopic surgery that he had performed in 2003."

12.  He also provides a letter, dated 4 January 2011, from a podiatry consultant who states "upon review of the medial reports and magnetic resonance imaging comparing to the x-rays of the right foot and ankle he had performed in 2003 is not related to the injury and subsequent surgery of arthroscopic and debridement of the right ankle joint along with excision of the calcaneal-suboid coalition of the right foot, sustained during active duty in 2006."

13.  In the processing of this case, a staff advisory opinion was obtained from the USAPDA Agency Legal Advisor who recommends no changes to the applicant's military records.  The advisory opinion states:

	a.  Although the applicant has offered the opinions of two physicians that the 2003 and 2006 operations on his foot were different, that does not negate the fact the 2006 operation was to correct a continuing problem that was the result of his congenital abnormality that had undergone normal degenerative changes due to his previous condition.  The fact that there may have been two different types of operations (such opinions not concurred with by the narrative summary contents) does not provide any evidence that the reason for the second operation was the direct result of armed conflict or that it was directly caused by combat training.  In fact, the preponderance of the evidence in the case file supports that the condition generally deteriorated during the 2005-2006 time period to the point in which the applicant again needed additional corrective surgery for the same defect that was discovered in 2003.  Even if that applicant could produce some evidence that the condition had become worse while deployed in a combat zone (possible injury after hitting ankle on curb while disassembling a tent), there is no evidence of combat injury that meets the criteria for the finding that any of his unfitting conditions were combat-related (see Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation), E3.P5.1.1).  There is simply insufficient evidence to support that the applicant's condition in 2006 was the direct result of armed combat or training for combat; subjective opinions by the applicant or others that it "might" have been the cause is not sufficient.

	b.  The PEB's findings that the applicant's conditions were not combat related are supported by a preponderance of the evidence, were not in violation of any statute, directive, or regulation, and were not arbitrary or capricious.

14.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  The applicant did not respond within the given time frame.

15.  Paragraph E3.P5.1.1 (Incurred in Combat with an Enemy of the United States) of DODI states the physical disability is a disease or injury incurred in the LOD in combat with an enemy of the United States as defined by the U.S. State Department.

16.  Title 26, U.S. Code, section 104, states the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service under conditions simulating war, or which is caused by an instrumentality of war.

DISCUSSION AND CONCLUSIONS:

1.  Medical evidence shows he injured his right ankle in 2002 while on active duty playing flag football.  Subsequently, he was diagnosed with tarsal coalition, an abnormal joining of the bones in the foot/ankle that is normally congenital and often is not observed until older or when an injury to that area brings attention to the defect.  He had arthroscopic surgery to the affected joints in 2003.

2.  After completing another tour of active duty in 2005 he complained of bilateral hallux valgus deformities with subsequent pain and some renewed right ankle pain.  He received bunionectomies on both feet and he underwent a second tarsal coalition surgery in 2006.

3.  There is no evidence and he did not claim any specific injury to his right foot/ankle while in combat in 2005.  

4.  The physicians' letters provided by the applicant were noted.  However, 
there is insufficient evidence to show that the 2006 operation was required for anything other than to correct a continuing problem that was the result of his congenital abnormality that had undergone normal degenerative changes.  The fact that there may have been two different types of operations is not evidence that the reason for the second operation was the direct result of armed conflict or that it was directly caused by combat training.

5.  The preponderance of the evidence supports that the applicant’s congenital condition deteriorated during the 2005-2006 time period to the point in which he again needed additional corrective surgery for the same defect that was discovered in 2003.


6.  There is no evidence his right ankle condition that occurred in 2005 was incurred as a direct result of armed conflict, while engaged in extra hazardous service under conditions simulating war, or which is caused by an instrumentality of war.  Therefore, there is insufficient evidence to amend his records to show this condition was combat-related.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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



      _____________X____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110001456



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ABCMR Record of Proceedings (cont)                                         AR20110001456



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