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
836640
This is in reference to your
provisions of title 10 of the United States Code, section 1552.
application for correction of your naval record pursuant to the
A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 12 October 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 considered your case on 1 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
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
RATIONALE:
THE MEMBER IS A 33 YEAR OLD TM2,
SERVICE AT THE TIME HE WAS PLACED ON THE TDRL ON 15 SEPTEMBER 1995
WITH DISABILITY RATINGS OF 10% UNDER V.A. CODE 5299-5276(B)
SERVICE AGGRAVATED), 10% UNDER V.A. CODE 5299-5003(L), AND 10% UNDER
V.A. CODE
DIAGNOSES:
5299-5003(B), FOR A TOTAL RATING OF 27% ROUNDED TO 30% FOR THE
USN(RET) WITH ABOUT 9 YEARS OF
(EPTE,
(1) RIGID PES VALGOPLANUS FOOT TYPE WITH LATERAL IMPINGEMENT
SYNDROME;
(2) LEFT SHOULDER IMPINGEMENT CHRONIC; AND
(4) LEFT KNEE PATELLOFEMORAL SYNDROME WITH EARLY DEGENERATIVE
OSTEOARTHRITIS OF THE PATELLOFEMORAL JOINT.
AN ADDITIONAL DIAGNOSIS THAT WAS CONSIDERED A
CONDITION WAS:
CATE&ORY III
(3) MECHANICAL LOW BACK PAIN CHRONIC.
THE MEMBER UNDERWENT TDRL EVALUATIONS 16 JUNE 1999 AND 11 APRIL 2000
AT THE NATIONAL NAVAL MEDICAL CENTER. THE INFORMAL PEB CONSIDERED
THE CASE ON 4 MAY 2000 AND FOUND THE MEMBER UNFIT FOR DUTY BECAUSE
OF PHYSICAL DISABILITY BASED ON DIAGNOSES 2 AND 4 ABOVE AND RATABLE
AT 10% UNDER V.A. CODE 5299-5003 AND 10% UNDER CODE 5299-5003 FOR A
TOTAL RATING OF 20%. DIAGNOSES 1 AND 3 WERE CONSIDERED CATEGORY III
CONDITIONS. THE MEMBER DISAGREED WITH THIS FINDING AND DEMANDED A
FORMAL HEARING.
WEBER, III,
JAGC, USNR.
THE MEMBER APPEARED AT THE HEARING REQUESTING TO BE FOUND UNFIT
FOR DUTY WITH DISABILITY RATINGS OF 20% UNDER V.A. CODE 5299-5003 AND
10% UNDER V.A. CODE 5299-5276(B) FOR A TOTAL RATING OF 30% AND
PLACEMENT ON THE PDRL. TO SUPPORT HIS REQUEST THE MEMBER PRESENTED
TESTIMONY AND COPIES OF HIS V.A. TREATMENT RECORDS.
AFTER CAREFUL REVIEW OF ALL THE AVAILABLE EVIDENCE AND BASED ON
UNANIMOUS OPINION, THE FORMAL PEB FINDS THE MEMBER REMAINS UNFIT
FOR DUTY IN THE U.S. NAVY BECAUSE OF PHYSICAL DISABILITY. THE RECORD
DOCUMENTS THAT THE MEMBER HAD CHRONIC LEFT SHOULDER KNEE, AND
FOOT PAIN THAT LIMITED HIS ACTIVITIES DUE TO THE ABOVE DIAGNOSES. THE
TDRL EVALUATION INDICATES THAT SINCE PLACEMENT ON THE TDRL THE
MEMBER HAS UNDERGONE A LEFT ROTATOR CUFF REPAIR IN OCTOBER 1998 BUT
CONTINUES TO HAVE CHRONIC SHOULDER PAIN. IT ALSO INDICATES HE
CONTINUES TO HAVE CHRONIC BILATERAL KNEE PAIN. BOTH OF THESE LIMIT
HIS ACTIVITIES AND WOULD INTERFERE WITH THE ADEQUATE PERFORMANCE
OF REQUIRED MILITARY DUTIES. ALTHOUGH THE REPORT INDICATES THE
MEMBER’S FOOT SYMPTOMS ARE CONTROLLED WITH SHOE WEAR
MODIFICATION, THE MEMBER WOULD NOT BE ABLE TO RETURN TO
FOOT WEAR WITHOUT RETURN OF SYMPTOMS. THEREFORE, THE PES
VALGOPLANUS IS ALSO CONSIDERED UNFITTING FOR DUTY.
&ITARY
)
4/5 WEAKNESS OF THE SUPRASPINATUS MUSCLE. ALSO,
THE TDRL REPORT INDICATES EXAM SHOWS FULL RANGE OF MOTION IN THE
LEFT SHOULDER AND THE KNEES BUT WITH TENDERNESS TO PALPATION OVER
THE LEFT ANTERAIOR SHOULDER SURGICAL SCAR AND THE ANTERIOR DELTOID
FIBERS AS WELL AS
THERE WAS CREPITUS IN THE KNEES, RIGHT GREATER THAN LEFT, AND
POSITIVE PATELLAR GRIND BILATERALLY. PREVIOUS X-RAYS HAD BEEN
REPORTED TO SHOW PATELLAR OSTEOPHYTES IN THE LEFT KNEE CONSISTENT
WITH EARLY DEGENERATIVE CHANGES OF THE PATELLOFEMORAL JOINT AND A
TYPE II ACROMION
IN THE LEFT SHOULDER. THESE FINDINGS WITH EPISODES OF
INCAPACITATION
WARRANT THE 20% RATING UNDER V.A. CODE 5299-5003.
ALTHOUGH THE MEMBER WOULD NOT BE ABLE TO TOLERATE MILITARY FOOT
WEAR DUE TO HIS FLAT FEET, THE TDRL EVALUATION INDICATES THIS DOES
NOT APPEAR TO AFFECT HIS GAIT IN ANY WAY. ALTHOUGH THE MEMBER
CLAIMED THAT THE FOOT CONDITION CONTINUED TO CAUSE ANKLE PROBLEMS,
HIS TESTIMONY INDICATED HE CURRENTLY WORKS 45 TO 55 HOURS PER WEEK
AS A RECRUITER FOR A TECHNICAL TRAINING INSTITUTE THAT REQUIRES
STANDING 4 TO 6 HOURS AT A
SHOWS. THE MEMBER DOES NOT REQUIRE ANY AMBULATORY ASSISTIVE
DEVICES. THEREFORE, THE PES VALGOPLANUS IS CONSIDERED TO WARRANT
ONLY A 0% RATING UNDER V.A. CODE 5276(B).
TIME TWO TO THREE TIMES A MONTH FOR CAR
THE ABOVE RATINGS COMBINE TO 20%.
ALTHOUGH THE LOWER BACK PAIN HAS WORSENED, THIS WAS CONSIDERED A
CATEGORY III CONDITION AT THE TIME THE MEMBER WAS PLACED ON THE
TDRL. THERE WAS NO EVIDENCE PRESENTED TO CHANGE THAT
CATEGORIZATION NOW. THEREFORE, DIAGNOSIS 3 REMAINS A CATEGORY III
CONDITION.
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