IN THE CASE OF:	  

		BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110003655 


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, in effect, Post Traumatic Stress Disorder (PTSD), a traumatic brain injury (TBI), a back injury, gout, and hearing loss be added to his unfitting conditions and his disability rating be increased.

2.  The applicant states the Medical Evaluation Board (MEB) grossly underrated his injuries and long term care that would be necessary for treatment including, but not limited to injuries to his leg, arm, back, and subsequent health problems directly related to his injuries.    

3.  He contends additional testing and counseling have been done since he was entered into the Department of Veterans Affairs (DVA) system that will show his PTSD classification by the Army upon his retirement was grossly underrated and continues to be a huge problem for him.  As far as a TBI is concerned, he was given an instruction sheet when he left Brooke Army Medical Center to assist with trying to keep track of things because he has short term memory problems.  

4.  He states additional surgeries have been done on his leg since his retirement but his leg continues to be a problem and more surgeries will be needed.  Daily swelling and pain are a problem and will continue to be a problem.  His disability was underrated.

5.  He also states his arm injury was not addressed as it should have been when he was injured.  Physical therapy on his arm while on convalescent leave in October 2007 only added to the pain he was experiencing.  After repeated complaints about the pain, testing was done to show his arm was broken in the elbow.  Nothing was done to fix it.  Ligaments were torn free and are gone.

6.  He further states back pain has been a problem from the beginning.  He was treated at a county hospital in WY for back pain during a two week convalescent leave in October 2007.  The pain has always contributed to the way he walks (limps) because of his leg injury.  The pain became so bad in late 2010 that additional testing was done by the DVA and it was revealed his back had numerous fractures from the bombing incident in Iraq.  He was given several shots to the spine to numb the pain.  Additional long term care for this injury will be required.

7.  He states he is now requiring medication and monitoring for arthritis, gout, and extremely high triglycerides that have developed because of his injuries.  Sensitivity to sun and cold are also a problem because of his burns to his face and hands.  He indicates his hearing loss from numerous explosions was rated acceptable but this is accurate only if he is looking at you.     

8.  The applicant provides:

* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* MEB proceedings
* DA Form 3349 (Physical Profile)
* Physician's discharge summary, dated 7 September 2007
* Two x-rays of his right ankle, dated 16 January 2008

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 16 June 2005 for a period of 3 years and 16 weeks.  He completed his training and was awarded military occupational specialty 11B (infantryman).  He served in Iraq from 16 June 2005 to 7 October 2005.

2.  On 13 March 2008, an MEB diagnosed the applicant with:

	a.  right ankle pain and decreased motion due to fracture of the distial fibular and disruption of syndesmotic ligament requiring open reduction internal fixation;

	b.  avulsion fractures involving the left nondominant elbow with chronic pain;

	c.  healed partial thickness burns to the face, head and neck with residual pain syndrome; 

	d.  partial thickness burns to the bilateral wrists and hands, medically acceptable; and 

	e.  depression, medically acceptable.

3.  The MEB recommended referral to a PEB.  He agreed with the MEB's action on 27 March 2008. 

4.  On 7 April 2008, a PEB found the applicant physically unfit due to:

	a.  limitation of motion of the right ankle (with pain) following distal fibular fracture with disruption of the syndesmotic ligament, Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Code 5271, 20%.  The disability description on the DA Form 199 (PEB Proceedings), states his range of motion is limited due to the fracture, scarring, and contractures of the Achilles.  His ahs 2+ edema, 5 degrees inversion, 3 degrees eversion, minus 10 degrees dorsiflexion and 30 degrees plantar flexion.  This interferes with his ability to perform 11B duties since he has difficulty walking.  Rated as marked.  

	b.  second degree burns of the face, head, and neck which, although healed, still have sensitivity to extreme temperature changes, wearing caps, and other items that touch the face, VASRD 7899/7806, 20%.  The disability description on the DA Form 199 states this indicates involvement of the distal nerve endings and the impairment (inability to wear items that touch head, face, or neck) is rated by analogy to dermatitis which can have similar impairment.  20-40% of the exposed area is affected.  

	c.  chronic pain and limitation of motion of left (non-dominant) elbow following two avulsion fractures and a bullet wound to the medical aspect of the elbow, VASRD 5099/5003, 10%.  The disability description on the DA Form 199 states he has 4/5 breakaway weakness and 18 degree lag from full extension (flexion is 135 degrees).  Rated as periarticular pathology with limitation of motion.  

5.  The MEB diagnoses of partial thickness burns to the bilateral wrists and hands and depression were not unfitting, not rated.

6.  The PEB recommended a combined rating of 40% and that the applicant be permanently retired.  On 8 April 2008, the applicant concurred with the findings of the PEB and waived a formal hearing.  

7.  On 24 April 2008, the U.S. Army Physical Disability Agency approved the informal PEB's findings and recommendations.

8.  On 29 June 2008, the applicant was retired by reason of permanent disability with a disability rating percentage of 40%.

9.  A DVA rating decision, dated 29 November 2010, shows he is receiving service-connected disability compensation for:

* TBI (40%)
* PTSD (30%)
* Scar, status post four compartment faciotomy, right lower extremity deltoid ligament repair and vessel loop reapproximation (20%)
* Status post fracture right ankle with residual pain (20%)
* Left elbow avulsion with residual pain (10%)
* Vitreal synersis, left eye (0%)
* Burn scars to bilateral hands (0%) 

10.  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.  It states that, after establishing the fact that a Soldier is unfit because of physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability.  Percentage ratings reflect the severity of the Soldier's medical condition at the time of rating.

11.  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.

12.  The VASRD states that VASRD Code 5271 (Ankle, limited motion of) is rated at:

* 10% when moderate
* 20% when marked

13.  The VASRD states VASRD Code 7806 (Dermatitis or Eczema) may be rated as disfigurement of the head, face, or neck (diagnostic code (DC) 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability.  The VASRD states that VASRD Code 7801 is rated at:

* 10% when area or areas of at least 6 square inches but less than 12 square inches
* 20% when area or areas of at least 12 square inches but less than 72 square inches
* 30% when area or areas of at least 72 square inches but less than 144 square inches
* 40% when area or areas of 144 square inches or greater 

14.  The VASRD states the following pertaining to VASRD Code 5003 (Arthritis, degenerative (hypertrophic, or osteoarthritis)):

Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003.  Limitation of motion must objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion rate as below:

* 10% with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups
* 20% with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations

15.  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.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests PTSD, a TBI, a back injury, gout, and hearing loss be added to his unfitting conditions.  However, he provides no evidence to show these conditions rendered him unfit to perform his military duties.

2.  He contends his disabilities were grossly underrated.  However, he concurred with the findings and recommendation of the PEB on 8 April 2008.
3.  No evidence shows his right ankle, left elbow, or burns to his face, head, and neck met the criteria for a higher rating.  Since there is insufficient evidence to show his disabilities were improperly rated by the PEB in 2008, there is no basis for granting the applicant's request to increase his disability rating.
 
4.  The applicant's conditions may very well have worsened since his permanent disability retirement; however, the Army’s rating was dependent on the severity of his conditions at the time the rating was made.  The VA has the responsibility and jurisdiction to recognize any changes in those conditions over time by adjusting his disability rating.

5.  The rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  

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 that 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)                                         AR20110003655



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110003655



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1