IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110013040

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 29 June 2010 DA Form 199 (Physical Evaluation Board (PEB) Proceedings) as follows:

	a.  Correction of his disability rating from 30 percent (%) to 50% for disability and pay purposes.

	b.  Correction of his DA Form 199 to reflect a rating of 30% for his wrist condition under the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5214 instead of the current rating of 10% under VASRD code 5299/5215.

2.  The applicant defers his statement and evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records for disability and pay purposes as follows:

* Change his disability rating from 30% to 50%
* Correct his DA Form 199 to list his right wrist condition as 30% under VASRD code 5214 instead of 10% under VASRD codes 5299/5215

2.  Counsel states the disability rating and the VASRD code used on the applicant's DA Form 199 are incorrect.

3.  Counsel provides:

* memorandum of petition
* list of medications
* 4 DA Forms 2173 (Statement of Medical Examination and Duty Status)
* memorandum delegating approval authority for Line of Duty (LD) determination
* 4 LD approvals (hearing loss, right shoulder suprispinafous tear, cervical spondylosis C4-C5, and left shoulder internal derangement)
* DD Form 2807-1 (Report of Medical History)
* DD Form 2216E (Hearing Conservation Data)
* DD Form 2808 (Report of Medical Examination)
* DA Form 3349 (Physical Profile)
* patient lab inquiry
* Narrative Summary Report (NARSUM)
* Medical consultation note
* nerve conduction study and recommendation
* DA Form 7652 (Physical Disability Evaluation System (PDES)) Commander's Performance and Functional Statement
* therapist notes, Easton Physical Therapy & Sports Care
* doctors note, wrist surgery
* Memorandum to the PEB
* DA Form 199
* Standard Form 600 (Chronological Record of Medical Care)
* Spreadsheet of disabilities

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Maryland Army National Guard on 18 February 1980 and held military occupational specialty 11B (Infantryman).  He served through multiple extensions or reenlistments and attained the rank/grade of staff sergeant (SSG)/E-6.

2.  He was ordered to active duty on 9 June 2007 and subsequently served in Kuwait/Iraq from 9 September 2007 through 15 March 2008.  

3.  His records do not contain a LD determination for his right wrist.

4.  The DD Form 2871 provided by counsel states that the applicant had a right wrist fusion because of a civilian work injury.

5.  Counsel provided a NARSUM dated 23 December 2009.  The NARSUM mentions the following in relation to his right wrist:

* early 1990s fell and injured wrist, two weeks later had a partial wrist fusion, wrist comfortable but motion limited since
* passive dorsiflexion 30 degrees
* palmar flexion 35 degrees
* radial and ulnar deviation 10 degrees
* orthopedic evaluation indicated post traumatic arthritis in right wrist
* fusion of right wrist  in 1990, with mild limitation, medically acceptable

6.  Counsel provided evidence which shows, on 17 February 2010, an electrodiagnostic nerve conduction study revealed evidence of moderate bilateral carpal tunnel syndrome (medial nerve entrapment at wrist) affecting sensory components.  The study did not specify if the diagnosis is referring to the right or left wrist.

7.  Counsel provided a DA Form 7652 for the PDES, dated 23 February 2010.  The commander checked a block that states the applicant's medical condition and limitation affect unit mission.  The commander further explains that the applicant was working in an administrative capacity and not as an 11B.

8.  Counsel provided a copy of therapist's notes from Easton Physical Therapy and Sports Care, dated 3 May 2010.  The notes show the following in relation to the right wrist:

* wrist flex, A 23 degrees, P 30 degrees
* wrist extension A 30 degrees, P 40 degrees
* ulnar deviation 20 degrees
* radial deviation 13 degrees

9.  Measurements for dorsalflexation, palmar flexation, ulnar deviation, and radial deviation were taken at Easton Physical Therapy and by the physician who completed the NARSUM.  The measurements are not consistent.

10.  On 28 June 2010, counsel provided evidence to show he submitted a memorandum to the PEB asking for reconsideration of the applicant's case because the VA told the applicant he had to have a total wrist fusion.  Counsel indicates the applicant had a consultation scheduled for 13 July 2010.

11.  The applicant's records contain a DA Form 199.  The third disability description in item 8b states:

* mild limitation of motion 


* incurred in LD
* in early 1990 he developed pain in right wrist
* in 1996 he had a wrist fusion surgery
* doing well after surgery until 2005
* trauma from Iraqi deployments cause wrist pain and movement to become more painful
* range of motion dated 14 April 2010 show 25 degrees of palmar flexation and 30 degrees of dorsiflexation
* crepitus and pain with motion
* decreased motor strength of hand
* condition unfitting for an 11B
* consideration of functional loss due to pain, pain on repeated use, painful motion, fatigability, incoordination, weakness with repetitive use, and flair-ups

12.  The PEB rated the applicant in accordance with Title 38 of the Code of Federal Regulations (CFR) .  The applicant was assigned the VASRD codes 5299/5215.  The PEB found the applicant physically unfit, recommended a 10% rating for his wrists, but a combined rating of 30%, and a permanent disability retirement.  The applicant testified during his PEB that his right wrist had painful motion and may require further surgery.

13.  The applicant signed a DA Form 199-1 (Election to Formal Physical Evaluation Board Proceedings).  He placed his initials in the first block of the form indicating he concurred with the findings of the PEB.

14.  On 29 June 2010, the applicant signed a formal election statement of understanding.  This statement indicated that he had until 9 July 2010 to file a rebuttal to the PEB.

15.  Counsel provided  a Standard Form 600 which shows the applicant had a right wrist arthrodesis procedure done on 26 August 2010.

16.  He retired on 27 September 2010.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired in accordance with paragraph      4-24B(1) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of permanent disability. 

17.  Under VASRD code 5214 (Ankylosis of the wrist), ankylosis of the wrist with 20 degrees to 30 degrees of dorsiflexion is considered favorable and rated at 30% as a major condition and 20% for a minor condition.

18.  Under VASRD code 5215 (Wrist, limitation of motion), dorsiflexion less than 15 degrees and palmar flexion limited in line with forearm are both rated at 10% for major or minor conditions.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  

20.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

21.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his records should be corrected for pay and disability purposes to show the percentage of his disability rating as 50%, and that his DA Form 199 be corrected to list his right wrist as 30% under the VASRD code 5214 has been carefully considered and determined to lack merit.

2.  The NARSUM states the diagnosis of his right wrist is a mild limitation of motion, which is medically acceptable for duty.  

3.  The right wrist was not referred to the PEB as a medically unacceptable condition:

	a.  The applicant does not provide the results of the informal PEB but it can be concluded that he did not concur with the results because a formal PEB was conducted.  

	b.  The applicant and counsel were present and the applicant presented evidence that he was going to undergo right wrist surgery because of pain.  The PEB subsequently found the applicant to be unfit for wrist pain.  This rating resulted in a combined rating of 30% and a medical retirement.

	c.  The applicant was not found to be unfit because of limited wrist motion.  His limited wrist motion was not severe enough to qualify for a rating for limited motion wrist motion under VASRD code 5215.

4.  The PEB was aware that the applicant was going to have another surgery to treat his wrist pain and still awarded him a 10% rating for pain.  This rating resulted in a combined rating of 30%.  

5.  The applicant contends that he is more disabled after the surgery and that his disability rating should be increased to 30%.  This would require the applicant to show that his right wrist is completely ankylosed (no movement) and that, although he is no longer unfit due to pain, he is now unfit for ankylosis.  The applicant has not provided any document to meet this requirement.

6.  The VASRD code 5214 is for a diagnosis of ankylosis.  The NARSUM and the PEB diagnosed him with mild limitation of motion, and pain in his right wrist, not with ankylosis.  

7.  The PEB granted him a disability rating of 10% for his right wrist even though the NARSUM stated the condition was medically acceptable.  The consideration was given because of the pain he was experiencing.  It was the pain which made him unfit for duty, not the mild limitation of motion.  

8.  There is no VASRD rating for wrist pain so the PEB used an analogous rating.  The code 5299 indicates that it is analogous.  The code 5215 is the analogous code and is for limitation of motion.  In use of an analogous code, the PEB is saying that the limitation of motion was not unfitting but the wrist pain resulted in a degree of disability similar to limitation of motion.  He received a 10% rating, the highest allowed for 5215.

9.  He signed a formal election statement of understanding indicating that he understood that he had until 9 July 2010 to file a rebuttal to the PEB.  He did not do so during this time frame.

10.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation.  The applicant was properly rated at 10% for mild limitation of wrist motion and wrist pain.  There is no evidence to support a higher rating.

11.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.

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)                                         AR20110005865



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ABCMR Record of Proceedings (cont)                                         AR20110013040



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