DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORD
S
2 NAVY ANNE
X
WASHINGTON DC 20370.510
0
JRE
Docket No:
23 October 2001
2043-01
This is in reference to your application for correction of your naval record pursuant to the
provisions of title 10 of the United States Code, section 1552.
A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 12 October
injustice were reviewed in accordance with administrative regulations and procedures
applicable to the proceedings of this Board.
consisted of your application, together with all material submitted in support thereof, your
naval record and applicable statutes, regulations and policies.
2001. Your allegations of error and
Documentary material considered by the Board
After careful and conscientious consideration of the entire record, the Board found that the
evidence submitted was insufficient to establish the existence of probable material error or
injustice.
In this connection, the Board substantially concurred with the rationale of the
hearing panel of the Physical Evaluation Board which considered your case on 9 August
2000, a copy of which is attached. Accordingly, your application has been denied. The
names and votes of the members of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such that favorable action cannot be
taken. You are entitled to have the Board reconsider its decision upon submission of new
In this
and material evidence or other matter not previously considered by the Board.
regard, it is important to keep in mind that a presumption of regularity attaches to all official
records. Consequently, when applying for a correction of an official naval record, the
burden is on the applicant to demonstrate the existence of probable material error or
injustice.
Sincerely,
W. DEAN PFEIFFER
Executive Director
Enclosure
RATIONALE:
THE MEMBER IS A 30 YEAR OLD MSSN,
SERVICE AT THE TIME SHE WAS PLACED ON THE
WITH DISABILITY RATINGS OF 10% UNDER V.A. CODE 52 13, 10% UNDER V.A. CODE
5294, 10% UNDER CODE 8520, AND 10% UNDER CODE 65 19 FOR A TOTAL RATING
OF 34% ROUNDED TO 30% FOR THE DIAGNOSES:
USN(RET) WITH ABOUT 5 AND
TDRL ON 24 FEBRUARY 1995
‘/2 YEARS OF
(2) STATUS POST LEFT RADIUS FRACTURE WITH SYNOSTOSIS;
(3) STATUS POST PELVIC FRACTURES WITH SHORTENED RIGHT LOWER LIMB;
(4) PROBABLE RIGHT SCIATIC NEUROPATHY; AND
(5) HOARSENESS.
AN ADDITIONAL DIAGNOSIS THAT WAS A CATEGORY II CONDITION
CONTRIBUTING TO DIAGNOSES 3 AND 4 WAS:
(6) LOW BACK PAIN.
ADDITIONAL DIAGNOSES THAT WERE CONSIDERED CATEBORY III CONDITIONS
WERE:
(1) STATUS POST CLOSED HEAD INJURY; AND
(7) MILD DEPRESSION.
THE MEMBER UNDERWENT TDRL EVALUATIONS ON 6 AND 9 MAY 1997 AT
JACKSONVILLE NAVAL HOSPITAL. ON 20 OCTOBER 1999 JACKSONVILLE NAVAL
HOSPITAL SUBMITTED A CIVILIAN RHEUMATOLOGY EVALUATION DATED 20
JULY 1999 IN LIEU OF A TDRL EVALUATION. THE INFORMAL PEB CONSIDERED
THE CASE ON 20 DECEMBER 1999 AND FOUND THE MEMBER UNFIT FOR DUTY
BECAUSE OF PHYSICAL DISABILITY BASED ON DIAGNOSES
AND RATABLE AT 10% UNDER V.A. CODE
CODE 5213, AND 0% UNDER V.A. CODE 6519 FOR A TOTAL RATING OF 20%.
DIAGNOSIS NUMBER 6 REMAINED A CATEGORY II CONDITION AND DIAGNOSES 1
AND 7 REMAINED CATEGORY III CONDITIONS. THE MEMBER DISAGREED
THIS FINDING AND DEMANDED A FORMAL HEARING.
4,3,2, AND 5 ABOVE
5294,0% UNDER
8520,10% UNDER CODE
WITH
THE MEMBER APPEARED AT THE HEARING REQUESTING TO BE FOUND UNFIT
FOR DUTY WITH DISABILITY RATINGS OF 20% UNDER V.A. CODE
UNDER CODE 52 13, AND 10% UNDER CODE 65 19-65 16 FOR A TOTAL RATING OF 42%
ROUNDED TO 40%. TO SUPPORT HER REQUEST THE MEMBER PRESENTED
TESTIMONY, COPIES OF HER CIVILIAN AND JACKSONVILLE NAVAL HOSPITAL
TREATMENT RECORDS, AND NON-MEDICAL EVIDENCE LETTERS FROM HER
PARENTS AND AN AUNT. THE MEMBER ALSO MADE HER
REVIEW.
MRI’S AVAILABLE FOR
5294,20%
2,3, AND 4
AFTER CAREFUL REVIEW OF ALL THE AVAILABLE EVIDENCE AND BASED ON
UNANIMOUS OPINION, THE FORMAL PEB FINDS THE MEMBER REMAINS UNFIT
FOR DUTY BECAUSE OF PHYSICAL DISABILITY BASED ON DIAGNOSES
ABOVE. THE RECORD DOCUMENTS THAT THE MEMBER SUSTAINED MULTIPLE
INJURIES IN A MOTOR VEHICLE ACCIDENT IN FEBRUARY 1993 THAT INCLUDED A
CLOSED HEAD INJURY, PELVIC FRACTURES THAT RESULTED IN SHORTENING OF
THE RIGHT LOWER EXTREMITY, A LEFT RADIAL FRACTURE, HOARSENESS
PROBABLY DUE TO A RECURRENT LARYNGEAL NERVE TRAUMA, AND A RIGHT
SCIATIC NEUROPATHY. THE RECORD DOCUMENTS THAT THE MEMBER
CONTINUES TO HAVE CHRONIC LOWER BACK PAIN, PAIN IN BOTH HIPS, AND
RESIDUAL LEG LENGTH DISCREPANCY REQUIRING A
SHOE. ALTHOUGH NOT DOCUMENTED IN THE RECENT EVALUATION, THE
MEMBER CONTINUES TO HAVE LIMITATION IN PRONATION AND SUPINATION IN
THE LEFT FOREARM DUE TO SYNOSTOSIS RELATED TO THE RADIAL FRACTURE.
THESE LIMIT THE MEMBER’S ACITIVITIES AND WOULD INTERFERE WITH THE
ADEQUATE PERFORMANCE OF REQUIRED MILITARY DUTIES. ALTHOUGH THE
PREVIOUS TDRL EVALUATIONS INDICATED RESOLUTION OF THE SCIATIC
NEUROPATHY, THE MEMBER TESTIFIED SHE CONTINUES TO HAVE EPISODES OF
SHOOTING PAIN IN HER LEG THAT IS EXCRUCIATING AND TRANSIENTLY
INCAPACITATING SUCH THAT IT WOULD INTERFERE WITH THE PERFORMANCE
OF DUTIES.
3/4 INCH LIFT IN THE RIGHT
ALTHOUGH THE RHEUMATOLOGY EVALUATION AND PREVIOUS TDRL
EVALUATION FAILED TO DOCUMENT THE LIMITATIONI IN PRONATION AND
SUPINATION, EXAM AT THE HEARING SHOWED PRONATION WAS LIMITED TO
ABOUT 50 DEGREES AND SUPINATION TO ABOUT 30 DEGREES. THIS IS
CONSIDERED TO WARRANT THE 20% RATING UNDER V.A. COLD 5213.
THE PERSISTENT LOWER BACK AND PELVIC PAIN WITH A
DISCREPANCY WARRANTS A 10% RATING UNDER V.A. CODE 5294.
3/4 INCH LEG LENGTH
THE TDRL AND RHEUMATOLOGY EXAMS INDICATE NO MOTOR OR SENSORY OR
TENDON REFLEX DEFICITS IN THE LOWER EXTREMITIES. THEREFORE, THE
RESIDUAL INTERMITTENT RADICULAR PAIN IS RATED AT 0% UNDER V.A. CODE
*
8520.
DIAGNOSIS NUMBER 6 REMAINS A CATEGORY II CONDITION CONTRIBUTING TO
DIAGNOSIS NUMBER 3.
THE ABOVE RATINGS COMBINE TO
28%, WHICH ROUNDS TO 30%
THE FORMAL PEB DID NOT FIND THE MEMBER ’S RESIDUAL HOARSENES TO BE
OF SUCH A SEVERITY THAT IT WOULD PRECLUDE THE PERFORMANCE OF
DUTIES. THEREFORE IT IS
CONSlDERED A CATEGORY III CONDITION.
DIAGNOSES 1 AND 7 REMAIN CATEGORY III CONDITIONS AS PREVIOUSLY
CATEGORIZED.
THE MEMBER’S FIVE YEARS OF TDRL ELIGIBILITY HAS EXPIRED. THEREFORE,
THE DISABILITY IS CONSIDERED PERMANENT.
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