DEPARTMENT OF THE NAVY

BOARD  FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

JRE
Docket No: 4039-01
9 July 2002

Chairman, Board for Correction of Naval Records
Secretary of the Navy

REVIEW OF NAVAL

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RECdRD 

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(a)
(b)

(1)
(2)
(3)

U.S.C. 1552
10 
SECNAVINST 

1850.4D

DD Form 149 w/attachments
Director, NCPB ltr 5220
Subject’s naval record

Ser:02-04, 25 Mar 02

From:
To:

Subj:

Ref:

Encl :

1.
Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner,
filed enclosure (1) with this Board requesting, in effect, that her naval record be corrected to
show that she was released from active duty and transferred to the Temporary Disability
Retired List (TDRL) with a 30% rating under Department of Veterans Affairs (VA) code
5284, for  “Other injuries, severe, foot ”.

,

2. The Board, consisting of Messrs. Kim,
allegations of error and injustice on 23 May 2002 and, pursuant to its regulations, determined
that the corrective action indicated below should be taken on the available evidence of record.
Documentary material considered by the Board consisted of the enclosures, naval records,
and applicable statutes, regulations and policies.

Novello and Pfeiffer, reviewed Petitioner ’s

 

3. The Board, having reviewed all the facts of record pertaining to Petitioner
of error and injustice finds as follows:

’s allegations

a. Before applying to this Board, Petitioner exhausted all administrative remedies

available under existing law and regulations within the Department of the Navy.

b. Enclosure (1) was filed in a timely manner.

C.

Petitioner initially enlisted in the Navy on 10 September 1990. She was the subject

of medical boards convened on 24 November 1998 and 15 July 1999, and was given
diagnoses of traumatic hematoma, with  
debridement, left arch.  
She underwent a pre-separation physical examination on 15 March 2000 and was found not

Themedical  boards recommended that she be placed on limited duty.

plantar fibrosis of the left foot arch, and surgical

“rule/out” 

fibromyalgia,

physically qualified for separation, apparently due to diagnoses of 
A third medical board convened on 19 April
and reflex sympathetic dystrophy, left foot.
plantar aspect left foot, status post excision
 
2000, and gave her diagnoses of hemangioma,
times two, and complex regional pain syndrome with continuing pain and dyesthesias. On 24
August 2000, the Physical Evaluation Board (PEB) made preliminary findings that she was
unfit for duty because of the regional pain syndrome, which it rated at 20% under VA code
8799-8720, by analogy to neuralgia of the sciatic nerve. She rejected those findings, and
demanded a formal hearing, which was conducted on 26 October 2000. She requested that
her condition be rated under VA code 5284, as a foot injury. The hearing panel determined
that she received the maximum permissible rating of
as reflex sympathetic dystrophy (RSD), was routinely rated as neuralgia under, code 8720
when the sciatic nerve was the primary nerve involved.
It noted that the VA Schedule for
Rating Disabilities (VASRD) provides, in effect, that ratings for neuralgia will not exceed the
As the rating for moderate,
rating for moderate incomplete paralysis of the involved nerve.
20%) her condition was properly rated at that
incomplete paralysis of the sciatic nerve is  
level. Petitioner submitted a Petition for Relief from Final Action (PFR) to the Director,
Naval Council of Personnel Boards (NCPB), in which she detailed the severity of her
condition, and renewed her request for a 30 % rating.
on 17 January 2001, and Petitioner was discharged by reason of physical disability on 5
March 

2001, having completed 10 years, 5 months and 26 days of service.

20%, because her condition,  

The Director, NCPB, denied the PFR

 

also known

e.

In correspondence attached as enclosure  

(2), the Director, NCPB, advised the Board,

The code table contained in reference  

in effect, that Petitioner received a rating for RSD of her left foot based on the inability to
use her lower left extremity.
(b) is unambiguous in
establishing code 8799-8720 for rating RSD, and establishing a maximum rating equivalent to
moderate incomplete paralysis, or  
opined that the function oriented code of 8799-8720 is more appropriate than is code 5284,
which is an anatomically based code for a foot injury.
regulations take precedence over VA rating conventions, and recommended that Petitioner
request for correction of her record be denied.

He noted that Department of the Navy
’s

20%, in the case of the sciatic nerve. In addition, he

f.

Petitioner contends, in effect, that code 5284 is more appropriate because reference

(b), pages 9-37 and 9-38, provide that  “Cases that are rated based on residuals should be
adjudicated based on the basis of impairment of function rather than on anatomical diagnosis.
She alleges that she sustained a severe foot injury as a result of surgical errors, and that the
injury caused her severe pain, for which she has been treated with numerous medications
since 1998. She maintains that all of the medications have side-effects which have added to
the limitations caused by her injury.
According to the physician who performed the second
surgical procedure on her foot, she has loss of use of the foot, and dystrophic and disuse
changes of the entire left lower extremity, which resulted from 
“failure of the missed
diagnosis of her initial surgery with the resultant surgery that resulted in her reflex
sympathetic dystrophy. 
November 
the entire foot and inability  
under code 5284.

2oo0, and noted that she had a neuropathic lower extremity, with inability to use
so bear weight. He recommended that her condition be rated

” He classified her impairment as  “extremely severe” as of 2

”

g. On 8 September 2001, the VA awarded Petitioner a combined rating of

 
follows: left foot injury,with severe, incapacitating symptoms, 30%; myofascial pain
syndrome, thoracic spine, 10%; painful scar of left foot, 10%; and myofascial dysfunction,
left shoulder, 10 % .

50%, as

h. Attachment (a) to enclosure (9) of reference (b), entitled Analogous Codes, provides

that RSD of the leg will be rated by analogy to sciatic nerve paralysis under VA code 8720.
Analogous codes are used in those cases where the specific condition does not have a separate
VA code, and those codes will be eliminated as the VASRD is updated to include code
 
numbers for specific diagnoses that were previously rated by analogy. Paragraph
reference (b) provides, in part, that the requirement to use the VASRD does not prevent the
Secretary of the Military
covered by the VASRD.
average earning capacity
assigned.

Department concerned from assigning ratings in unusual cases not
In such cases, extra-schedular ratings commensurate with the
impairment due exclusively to service connected disability may be

3804f, of

CONCLUSION:

Upon review and consideration of all the evidence of record the Board concludes that
Petitioner has a severe disability of her left lower extremity which is productive of
significantly greater impairment of average earning capacity than indicated by the 20% rating
assigned by the PEB and confirmed  
should have been assigned an extra-schedular rating of
of reference (b), and transferred to the TDRL, vice discharged by reason of physical
disability with entitlement to severance pay.

by the Director, NCPB. It further concludes that she

30%, as permitted by paragraph 3804f

 

In view of the foregoing, the Board finds the existence of an injustice warranting the
following corrective action.

RECOMMENDATION:

a. That Petitioner’s naval record be corrected to show that she was not discharged from

the Navy on 5 March 2001.

b. That Petitioner’s naval record be further corrected to show that she was released

from active duty on 5 March 200  
to 10 U.S. Code 1202, with a disability rating of 30% under VA code 8799-8720.

1, and transferred to the TDRL the following day, pursuant

That Petitioner be afforded a periodic physical examination as soon

as practicable.

Currtnt address: 3811 Marquette Place, Number

 

3K, San Diego, CA 92106

d. That a copy of this Report of Proceedings be filed in Petitioner

’s naval record.

It is certified that a quorum was present at the Board
4.
the foregoing is a true and complete record of the Board
matter.

’s review and deliberations, and that
’s proceedings in the above entitled

ROBERT D. ZSALMAN
Recorder

‘Acting

vcorder

5. The foregoing report of the Board is submitted for your review and action.

Reviewed and approved:

&\\G 

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‘-;rT’

Assistant General Counsel
(ManDower and Reserve Affairs)