IN THE CASE OF:	 

		BOARD DATE:	19 July 2012 

		DOCKET NUMBER:  AR20110019401


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 DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 7 December 2010, as follows:

* add "left wrist pain secondary to chronic degenerative change in the wrist"
* add "left ankle pain secondary to fibular excision for graft" 
* determine both conditions to be unfitting and secondary to the chronic nonunion and osteomyelitis (bone infection) of the right humeral shaft (upper arm)
* adjust final percentage of disability to reflect these added conditions

2.  The applicant states his final disability rating needs to be corrected to include the two secondary conditions as stated by military medical doctors in both of his post-Temporary Disability Retired List (TDRL) medical examinations.  He further states:

   a. On 19 November 2008, he underwent a TDRL medical examination that concluded the degenerative changes in his left wrist resulted from the increased use of his left hand and arm because of the loss of the use of his right hand and arm, which was his dominant hand and arm prior to the injury to his right humerus and subsequent removal due to nonunion and complications from osteomyelitis. 

   b. On 5 November 2010, he underwent his final TDRL medical examination that concluded he had a limited range of motion in his left wrist, with flexion to approximately 50 degrees and extension to approximately 50 degrees, and left wrist pain due to overuse and degenerative changes.  This examination further revealed his left ankle had limited strength with ankle eversion and diminished sensation in the superficial peroneal never distribution.  He now wears a brace on his left lower leg, ankle, and foot to increase stability for walking.

   c. On 13 December 2010, he indicated his concurrence to item 13 (Election of Soldier) of his DA Form 199, dated 7 December 2010.  He would have indicated his non-concurrence with Item 13, but at the time of election he was already past his mandatory removal date from the TDRL and his benefits had been terminated.  He states he concurred with the board’s findings so his benefits could be reinstated as soon as possible.  Even so, he and his family suffered financial hardship as his benefits were not reestablished until February 2011.  He concludes by stating this situation placed him under a great deal of stress, so he made the decision to sign and concur and utilize the appeals process for relief.

3.  The applicant provides the following documents, organized chronologically:

* TDRL evaluation summary, dated 17 November 2008
* Medical Evaluation Board (MEB) summary, dated 5 November 2010
* DA Form 199, dated 7 December 2010
* Letter from the Air Force Review Boards Agency, subject: Physical Disability Board of Review application, dated 4 April 2011

CONSIDERATION OF EVIDENCE:

1.  On 28 June 1972, the applicant enlisted in the Iowa Army National Guard (IAARNG).  On 10 January 1979, he was honorably discharged.

2.  On 29 December 1983, he again enlisted in the IAARNG.  On 24 June 1985, he entered active duty in the Active Guard Reserve (AGR) Program, where he performed administrative duties as the unit's training noncommissioned officer (NCO), unit clerk, and unit administrator.  He remained on active duty until he was retired for disability.

3.  On 23 September 2001, while working at his private residence, he fell off a ladder from an approximate height of 8 feet, landing on the concrete below.  He managed to transport himself to the Ottumwa Regional Hospital, Ottumwa, IA. He was examined and determined to have suffered a right humerus fracture, subluxation of the right little finger, multiple contusions, and low back pain.  Over the course of the next 3 years, he underwent multiple examinations, procedures, and surgeries to correct complications in the healing process, most notably the nonunion of his humerus fracture and osteomyelitis. 
4.  On 6 August 2004, a Line of Duty (LOD) investigation was initiated.  On         1 November 2004, at the completion of the LOD investigation, the National Guard Bureau (NGB) determined the applicant's injuries were incurred in the line of duty.  They noted the following injuries in their determination:

* right humerus fracture with chronic osteomyelitis, nonunion, operative reduction with internal fixation and bone grafting and sequalae
* dislocation of the right little finger
* contusions of the upper and lower back and pelvis

5.  On 4 March and 30 March 2005, he underwent a physical examination as part of an MEB.  His Optional Form 275 (Medical Record Report), comprising his Narrative Summary (NARSUM), shows:

* in 2003, his fractured right humerus was treated with a fibular graft that failed secondary to infection – all hardware, including the fibular graft, was removed in September 2004
* his past surgical history included a left wrist osteotomy
* he was diagnosed with an absent right humeral shaft secondary to fracture and infection  

6.  The examining official included the recommendation "Soldier no longer meets retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-9 (a & b) and 2-11 (g), and the case is forwarded to the PEB for final disposition."

7.  On 26 July 2005, an MEB convened at Munson Army Health Center, Fort Leavenworth, KS, and after consideration of his clinical records, laboratory findings, and physical examinations, the MEB determined the applicant suffered from an absent right humeral shaft secondary to fracture and infection.  The board recommended his referral to the PEB.  

8.  On his DA Form 3947 (MEB Proceedings), he indicated his desire to remain on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  On 13 July 2005, the MEB approval authority approved the board's findings and recommendation.  On 26 July 2005, he was informed of, and agreed with, the approved findings and recommendation of the board.

9.  On 1 August 2005, an informal PEB convened at Fort Lewis, WA, to consider his case.  The PEB determined he was physically unfit for continued military service, by reason of flail right (dominant) upper arm with onset in 2001.  As a result, it recommended a combined 60 percent disability rating percentage and placement on the TDRL with reexamination in January 2007.  The DA Form    199 indicated that the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) code applicable to his medical condition was 5202 (humerus, nonunion of (false flail joint)), rated at 60 percent.  Apparently, he concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

10.  On 14 November 2005, he was retired from active duty by reason of temporary physical disability and placed on the TDRL.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), by reason of temporary disability.  The DD Form 214 he received further credited him with the completion of 21 years, 1 month, and 1 day of total active service.

11.  On 2 February 2007, he underwent a TDRL evaluation at General Leonard Wood Army Community Hospital (GLWACH), Fort Leonard Wood, MO, during which his examining physician noted:

* in 2004, the applicant underwent surgery, during which his left fibula was removed in an attempt to replace the bulk of the shaft of his right humerus
* as a result of the removal of his fibula, his left ankle and leg cause him pain, especially when wearing footwear other than boots
* his leg is weak and he has difficulty walking without a brace 
* he has numbness in his thighs
* his pain in his left leg is constant in nature

12.  On 28 February 2007, an informal TDRL PEB convened at Fort Lewis, WA, to consider the applicant's further disposition.  The board noted his condition as flail right (dominant) arm, rated at 60 percent.  The board noted his condition had not improved to the extent that he was considered fit for duty; thus, the board ordered his retention on the TDRL with reexamination during August 2008. 

13.  On 17 November 2008, he underwent another TDRL evaluation at GLWACH, during which his examining physician noted:

* due to the big void of missing bone from the right upper extremity, he has been relying on his left upper extremity for almost all daily activities
* this reliance has caused a noted increase in left wrist pain over the last year due to increased activity
* he continues to have problems with left ankle pain in association with a fibular graft for treatment of his right humerus

14.  On 16 December 2008, an informal TDRL PEB convened at Fort Lewis, WA.  The board noted his condition as flail right (dominant) arm, rated at 60 percent.  The board noted his condition had not improved to the extent that he was considered fit for duty; thus, the board ordered his retention on the TDRL with reexamination during July 2010. 

15.  On 5 November 2010, he underwent another TDRL evaluation at GLWACH, during which his examining physician noted his chief complaints and relative histories, similar or identical to those found in previous examinations.  

16.  On 7 December 2010, an informal TDRL PEB convened at Fort Lewis, WA.  The board noted his condition had not improved to the extent that he was considered fit for duty.  The board noted his condition as flail right (dominant) arm, rated at 60 percent.  Further, the board noted that his additional diagnoses (left wrist pain secondary to chronic degenerative change in the wrist and left ankle pain secondary to fibular excision for graft) were not ratable, since they were not listed on the original MEB as not meeting retention standards and appeared to be new conditions unrelated to any previously rated unfitting condition.  Consequently, the board ordered his permanent retirement for disability.

17.  On 13 December 2010, he was advised of the board's findings and recommendations, and received a full explanation of the results of the findings and recommendations and his legal rights pertaining thereto.  He concurred with the board proceedings and waived a formal hearing in his case.  Subsequently, he was removed from the TDRL and permanently retired.

18.  In the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  In considering the applicant's request that his left wrist and left ankle pain be found unfitting and compensable as military disabilities, this agency opined:

* the applicant met the criteria for compensability for his left wrist pain as the condition could be said to be related to his right flail arm and considered to be unfitting
* his left wrist pain could have been rated in accordance with VASRD    5003 (arthritis), at 10 percent 
* the facts regarding his left ankle support the conclusion that the 2005 PEB would not have found the condition [left ankle pain] unfitting at that time
* adding 10 percent to his already existing 60 percent rating results in a total rating of 64 percent, which must be rounded down to 60 percent, resulting in no change

19.  The USAPDA recommended no change in the applicant's final Army disability percentage; however, the applicant's 7 December 2010 PEB Proceedings should be amended to reflect that his left wrist pain is unfitting and rated at 10 percent. 

20.  On 8 December 2011, the applicant was provided a copy of the advisory opinion for review and possible rebuttal.  On 21 December 2011, in his rebuttal to the USAPDA advisory opinion, he stated:

* he did not agree with the USAPDA advisory opinion regarding his left ankle pain
* he presented this condition as an issue during his 2005 MEB evaluation; however, the examining official stated he would only be evaluating his right arm and subsequent evaluations of his other conditions would occur during TDRL examinations, if necessary
* after his left fibula was removed, he no longer had stability in his left leg
* he continues to wear a brace on his lower left leg to correct this instability 
* he could not alter his Army duty uniform to allow for the brace, so he was forced to wear the Army Physical Fitness Uniform for the duration of his service
* his inability to wear the combat boot or dress shoe made the removal of his left fibula secondary and unfitting
* he believes the removal of his fibula should be covered under VASRD code 5262 (Tibia and Fibula, impairment of: Nonunion of, with loose motion, requiring brace)  

21.  Army Regulation 40-501 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.  Rating can range from     0 to 100 percent, rising in increments of 10 percent.

22.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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.  

   a. Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

   b. Paragraph 3-5 provides that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 

   c. Paragraph 7-2 provides that an individual may be placed on the TDRL for the maximum period of 5 years which is allowed by Title 10, USC, section 1210, when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

23.  The VA established the VASRD, often referred to as the "disability rating schedule," to aid in the evaluation of disabilities resulting from disease or injury incurred during or incidental to military service.  It contains a list of codes that correlate injuries or illnesses to percentage ratings that estimate the reduction in earning capacity resulting from the disability.  

   a. VASRD code 5003 provides that 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 non-compensable 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 be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.

   b. VASRD code 5262 provides that impairments related to the tibia and fibula, involving nonunion, with loose motion, and requiring the use of a brace, will be rated at 40 percent.  Impairments related to the tibia and fibula, involving malunion [incomplete or faulty union (as of the fragments of a fractured bone)], with marked knee or ankle disability, will be rated at 30 percent; with moderate knee or ankle disability, will be rated at 20 percent; and with slight knee or ankle disability, will be rated at 10 percent.



DISCUSSION AND CONCLUSIONS:

1. The applicant contends his PEB proceedings, dated 7 December 2010, should be amended to show his left wrist pain and left ankle pain as unfitting and secondary to the chronic nonunion and osteomyelitis of his right humeral shaft.  He further contends his final percentage of disability should be increased to account for these unfitting conditions.

2.  He was considered by an MEB in July 2005.  He agreed with the findings and recommendation of the MEB.  There is no evidence which confirms he was diagnosed with, or was unable to perform his duties, due to left wrist and left ankle pain at the time of his MEB.

3.  He was considered by a PEB in August 2005, which found him unfit for military service by reason of flail right (dominant) upper arm at a 60 percent combined disability rating.  He concurred with the findings and recommendation and he waived his right to a formal PEB hearing.  As a result, he was placed on the TDRL by reason of temporary disability.  

4.  He was considered by a TDRL PEB in December 2010, which found him unfit for military service, by reason of flail right (dominant) arm, at a 60 percent combined disability rating.  As a result, he was removed from the TDRL and permanently retired.  He again concurred with the findings and recommendations and waived his right to a formal PEB hearing.

5.  He contends his TDRL evaluation in 2008 found that the degenerative changes in his left wrist were brought on by the increased use of his left hand and arm to compensate for the lack his previously-dominant right hand and arm.  
According to the USAPDA advisory opinion, he met the criteria for compensability for his left wrist pain, under VASRD code 5003 (arthritis) at        10 percent, as the condition could be said to be related to his right flail arm and considered to be unfitting.  Therefore, it would be appropriate to correct his PEB Proceedings, dated 7 December 2010, to add his left wrist pain as unfitting, under VASRD code 5003, compensable at 10 percent.  As this change elevates his total disability rating to 64 percent, his final permanent disability compensation rate remains unchanged at 60 percent.

6.  He contends his left ankle pain resulted from the fibular graft procedure he underwent in 2003 to treat his fractured humerus.  He further contends his left 

ankle pain should be covered under VASRD code 5262.  The evidence record shows that while his fibula was removed, in an attempt to correct his fractured right humerus, prior to his MEB, there is no evidence his resulting condition should have been found unfitting by his MEB.  Furthermore, subsequent evaluations note his success in functioning with a lower leg brace.  

7.  The applicant's inability to wear the combat boot or dress shoe did not make the removal of his left fibula an unfitting condition.  For a condition to be considered unfitting, it must render a Soldier unable to perform his or her duties, not just interfere with the wearing of the uniform.  

8.  Accordingly, there is no evidence that indicates his disability processing was in error, or unjust, or that his medical conditions were improperly evaluated by the PEB.  As such, there is no basis for granting this portion of the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by  amending the applicant's TDRL PEB Proceedings, dated 7 December 2010, to show a 10 percent disability rating for VASRD code 5003 (arthritis) for degenerative changes in his left wrist.  

2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction of his TDRL PEB 

Proceedings, dated 7 December 2010, to show his left ankle pain as unfitting and compensable.  



      ____________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)                                         AR20100007330



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ABCMR Record of Proceedings (cont)                                         AR20110019401



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