DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORD
S
2 NAVY ANNE
X
WASHINGTON DC 20370-510
0
JRE
Docket No: 5449-00
14 August 2001
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 9 August 2001. Your allegations of error and
injustice were reviewed in accordance with administrative regulations and procedures
applicable to the proceedings of this Board. Documentary material considered by the Board
al;1 material submitted in support thereof, your
consisted of your application, together with
naval record and applicable statutes, regulations and policies.
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 10 August
1999, a copy of which is attached. The statement from the Medical Corps officer you
submitted does not contain significant new evidence concerning your ankle disability. There
is no basis for concluding that you suffered from separately unfitting conditions of the hip or
knee. The Board concluded that your disability was properly rated at 20%. 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
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
In this
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 44 YEAR OLD
ACTIVE SERVICE AND 12 YEARS OF RESERVE SERVICE AT THE TIME HE WAS
PLACED ON THE TDRL ON 17 JUNE 1997 WITH A DISABILITY RATING OF 40%
UNDER V.A. CODE 5299-5276-5284, LESS AN EPTE FACTOR OF 0%, FOR A TOTAL
RATING OF
USNR(RET) WITH ABOUT 4 YEARS OF
40%, FOR THE DIAGNOSES:
CEl,
(1) POST TRAUMATIC OSTEOARTHRITIS RIGHT ANKLE, STATUS POST SURGICAL
FUSION; AND
(2) HEALED ANKLE FUSION WITH PIN TRACT INFECTION.
THE MEMBER UNDERWENT TDRL EVALUATION ON 3 FEBRUARY 1999 AT FORT
I999
KNOX, KENTUCKY. THE INFORMAL PEB CONSIDERED THE CASE ON 1 APRIL
AND FOUND THE MEMBER UNFIT FOR DUTY BECAUSE OF PHYSICAL DISABILITY
THAT WAS RATABLE AT 20% UNDER V.A. CODE 5299-5270-5284. THE MEMBER
DISAGREED WITH THIS FINDING AND DEMANDED A FORMAL HEARING.
A FORMAL HEARING WAS CONDUCTED ON 10 AUGUST, 1999 AT BETHESDA,
MARYLAND WITH COLONEL E. G.
COLONEL L.
PANEL MEMBERS. THE MEMBER WAS REPRESENTED BY LIEUTENANT W. G.
PERDUE, JAGC, USNR.
BEINHART, III, USMC, AS PRESIDING OFFICER,
BULTEMEIER, USN, AND CAPTAIN L. E. MCCRACKEN, MC, USN, AS
M.
THE MEMBER APPEARED AT THE HEARING REQUESTING TO BE FOUND UNFIT
FOR DUTY WITH A DISABILITY RATING OF 30% UNDER V.A. CODE 5299-5270 AND
PLACEMENT ON THE PDRL. TO SUPPORT HIS REQUEST THE MEMBER PRESENTED
TESTIMONY, COPIES OF HIS V.A. MEDICAL RECORDS AND RATING DECISIONS,
COPIES OF ENTRIES FROM HIS MILITARY TREATMENT RECORDS NOT ALREADY
INCLUDED IN THE CASE FILE, AND NON-MEDICAL EVIDENCE LETTERS FROM HIS
PASTOR, THREE FRIENDS, AND ONE OF HIS INSTRUCTORS AT THE ITT TECHNICAL
INSTITUTE.
AFTER CAREFUL REVIEW OF ALL THE AVAILABLE EVIDENCE AND BASED ON
UNANIMOUS OPINION, THE FORMAL PEB FINDS THE MEMBER REMAINS UNFIT
FOR FULL DUTY IN THE U.S.NAVY BECAUSE OF PHYSICAL DISABILITY. THE
RECORD DOCUMENTS THAT THE MEMBER INITIALLY SUSTAINED AFRACTURE
TO HIS RIGHT ANKLE IN A MOTOR VEHICLE ACCIDENT IN 1979 UNRELATED TO
HIS MILITARY SERVICE. HOWEVER, THIS HEALED WITH NO RESIDUAL
IMPAIRMENT. THE MEMBERTHENREINJURED THE ANKLE IN APRIL 1995 DURING
A PERIOD OF ANNUAL RESERVE TRAINING IN GUATAMALA WHEN HE FELL OFF
SOME SCAFFOLDING. THIS REQUIRED AN ARTHROSCOPIC FUSION IN OCTOBER
1995 THAT WAS LATER DETERMINED TO HAVE FAILED AND REQUIRED A REPEAT
FUSION WITH OPEN BONE GRAFT AND AN EXTERNAL FIXATOR THAT WAS
COMPLICATED BY INFECTION. THIS HAS NOW HEALED. THE RECORD
DOCUMENTS THAT HE HAS NO MOTION AT THE TIBIOTALAR JOINT AND
CONTINUOUS PAIN THAT LIMITS HIS ACTIVITIES SUCH THAT IT WOULD
INTERFERE WITH THE ADEQUATE PERFORMANCE OF REQUIRED MILITARY
DUTIES.
HIP. BECAUSE IT WAS UNCLEAR FROM
THE MEMBER ’S TESTIMONY ALSO INDICATED THAT BECAUSE OF THE LACK OF
MOTION AT THE ANKLE, HE TENDS TO WALK WITH HIS FOOT TURNED OUT
RESULTING IN PAIN IN HIS KNEE AND
THE TDRL EVALUATION AND THE V.A. MEDICAL RECORDS THE POSITION IN
WHICH THE ANKLE WAS FUSED, THE HEARING WAS RECESSED AND AN
ORTHOPEDIC EVALUATION AT THE NATIONAL NAVAL MEDICAL CENTER WAS
OBTAINED TO DETERMINE THE POSITION OF THE FUSION. THIS EVALUATION
INDICATED THE ANKLE WAS FUSED WITH THE FOOT IN 3 DEGREES OF
FLEXION. THIS MEETS THE CRITERIA FOR THE 20% RATING UNDER V.A. CODE
5299-5270 BUT NOT THE 30% RATING SINCE THAT WOULD REQUIRE ANKYLOSIS
IN 0 TO 10 DEGREES OF DORSIFLEXION. THEREFORE, THE DISABILITY IS RATED
AT 20% UNDER V.A. CODE 5299-5270.
PLANTAR
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