DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370.510

0

JRE
Docket No: 5912-00
18 September 2001

Dear

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 30 August 2001. Your allegations of error and
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.

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 heard your case on 22 September
1999. A copy of the rationale is enclosed.
received for your arm condition was inadequate, or that your back condition was unfitting
and ratable. Accordingly, your application has been denied. The names and votes of the
members of the panel will be furnished upon request.

The Board was not persuaded that the rating you

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. In this
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

SAN DIEGO FORMAL PEB RATIONALE

IN THE CASE OF

A medical board met at Naval Medical Clinic, Pearl Harbor, Hawaii
on 30 March 1999 with the following diagnoses:

1.

2.

Permanent stationary disability left elbow status
post Mason III fracture  
Permanent stationary disability L5 disk annular tear (8460)

ORIF (8124)

The informal Physical Evaluation Board found the member unfit for duty on
19 July 1999 under VA Code 5209, rated his condition at 20% disability
and separation with severance pay.

This member appeared before the formal Physical Evaluation Board on
22 September 1999 requesting to be found unfit for duty under VA Codes
5209 at 40% and 5295 at 20%

for a total of 60%

and placed on the TDRL.

Accepted documentary evidence consisted of:

Exhibit A  
Exhibit B  
Exhibit C  
Exhibit D  
Exhibit E  

- PEB Case File
- Additional Medical Evidence
- Medical Update from MAJ Meter, MC, USA, dtd 26 Aug 99
- Ltr from CAPT Seybold, USMC, dtd 17 Sep 99
- Various Letters of Support

The member's medical board of 30 March 1999 reports diagnoses of
permanent stationary disability left elbow status post Mason III fracture
The member
and permanent stationary disability L5 disk annular tear.
requests ratings for both diagnoses.
skiing accident in August 1998.

He was originally injured in a

With regard to the member's elbow,
the member's injury and his current fixed disability.
motion was last reported as a left arm at  
.constant
extending only to 30 degrees down with pronation neutral and supination
to 45 degrees.
strength 

There was also reported to be some decreased muscle

the medical board carefully documents

fl_$x of 110 degrees

3+/5 in that arm.

The range of

The member requested a rating of 40% under VA Code 5209.
appropriate code and the one that was used by the informal board.
this code only has two possible ratings, 20% for a marked
or 
other alternative is 60%
member does not have.
fairly rated at 20%.

The only
(for major side) for a flail joint which the
Thus-, the member cannot be rated at 40% and is

 
This is what the member has.

cubitus valgus deformity.

But
cubitus varus

This is the

With regard to the member's back,
worse injury.

He said the biggest problem was with sitting.

he testified that this is actually the
However,

Enclosure 

(1)

_L

c

the member sat throughout the entire hearing comfortably without changing
The medical board reports an orthopedic evaluation of  
position.
January 1999, when the member complained of back pain worsened with
prolonged sitting.
have an annular tear at the L5 level.
in the medical board notes that the member had a negative straight leg
raise test and no tenderness to palpation with only limited right
rotation.
or muscle wasting in the lower extremities.
February 1999 showed no evidence of nerve impingement or disk herniation.

There is no report of decreased strength, abnormal reflexes,

The medical board also notes that the member does

Finally, an MRI of 12

the physical examination

However,

20

The member claimed that he was on heavy medication every

Exhibit B contains extracts from the member's medical record since the
medical board.
day and had lost his life because of his back pain.
only two visits recorded in the medical record for low back pain.
were on 20 April 1999 and 10 August 1999.
evidence that the member had abnormal reflexes, muscle wasting, or muscle
Further, on the 20 April visit, the
weakness in his lower extremities.
member was given Roxicet  
9 tablets with no refills and Flexoril 9 tablets
with no refills.
to take every 6 hours or about a 5 day supply.
30 tablets to take every 8 hours which would be about a 10 day supply and
Thus, the documentary
there is no evidence he was given any refills.
record suggests that there has never been any significant disability from
the member's back pain.

the member was given Roxicet 20 tablets

In neither visit is there

He was also given Motrin

However, there are

On 10 August,

These

In sum, the member has a permanent stationary disability of his left
elbow which has been appropriately rated by the informal board.
member also has evidence of an L5 annular tear that has required
occasional pain medications.
deficit and no indication that the member requires surgery or any further
treatment at this time.
separately unfitting condition.
of all relevant medical evidence,
for continued naval service and recommends that he be-separated and rated
under VA Code 5209 at 20%
elbow.

There is no indication that this has ever been a
Therefore, after careful consideration
the formal board  

for his stationary disability of his left

There is no evidence of any  

neurologic

fir&s the member unfit

The

Enclosure 

(i)

2