PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           3 August 2000                   
	DOCKET NUMBER:   AR2000039889

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Calvin M. Fowler		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his disability rating be increased.

3.  The applicant states that his disability rating only rated him for one fused ankle when in fact he had two fused ankles at the time he was placed on the Temporary Disability Retired List (TDRL).

4.  The applicant's military records are not available.  The information contained herein was obtained from documents provided by the applicant.

5.  The applicant was injured while in Honduras.   Apparently on 1 July 1999 he was evaluated by a physical evaluation board (PEB).  The DA Form 199, Physical Evaluation Board (PEB) Proceedings, was administratively corrected on 10 August 1999 to show he received a disability rating of 30 percent for a fused left ankle; 10 percent for arthritis, right ankle; 10 percent for major depressive disorder; and 10 percent for chronic left shoulder and left knee pain.  Using the combined ratings table in the VA Schedule for Rating Disabilities (VASRD), the total disability rating came to 52 percent, rounded to 50 percent.

6.  On 21 October 1999, the applicant underwent a right ankle fusion.

7.  On 9 November 1999, the applicant was placed on the TDRL with a disability rating of 50 percent.  

8.  On 11 July 2000, the U. S. Army Physical Disability Agency (USAPDA) informed the Board that they were never informed that the applicant had had further medical treatment after his PEB was completed.  They should have been informed so his DA Form 199 could have been administratively corrected to account for his second ankle fusion.

9.  Title 10, U. S. Code, section 1202 states that when a member would be qualified for disability retirement but for the fact his disability is not determined to be of a permanent nature and stable, his name shall be placed on the TDRL with retired pay computed under section 1401 of this title.

10.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

11.  VASRD code 5270 awards a 30 percent disability rating for ankylosis (immobility of a joint due to injury, disease or surgical procedure) of the ankle when the plantar flexion is between 30 degrees and 40 degrees or dorsiflexion is between 0 degrees and 10 degrees.  VASRD code 5271 awards a 10 percent disability rating when the ankle has limited motion to a moderate degree.  

12.  Section 4.26 of the VASRD states that when a partial disability results from disease or injury of both arms, or of both legs, the ratings for the disabilities will be combined as usual, and 10 percent of this value will be added (not combined) before proceeding with further combinations.  Section 4.25 discusses the Combined Ratings Table, which results from the consideration of the efficiency of the individual as affected first by the most disabling condition then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity.  Thus, a person having a 60 percent disability is considered 40 percent efficient.  Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether.  The individual is thus 72 percent disabled.  Combined values ending in 5 are adjusted upwards.

CONCLUSIONS:

1.  The Board concludes that a Government error was made when someone failed to inform the USAPDA that the applicant had undergone further medical procedures after his PEB that would affect his disability rating determination.

2.  The applicant’s DA Form 199 should have been administratively corrected to show his primary disability VASRD code as 5270, fusion of both ankles in neutral position, 30 percent for one ankle combined with 30 percent for the other ankle for 51 percent.  The bilateral factor would have added 10 percent of 51 to the 51 percent for 56 percent.  However, VASRD code 5271 should have been deleted (he could no longer have a “moderate decrease in the range of motion” of his right ankle since code 5270 showed his ankle as “immobilized”) so the 10 percent previously given for arthritis of the right ankle would not now be added.  The 10 percent for VASRD code 9434 would have been added for a combined rating of 60 percent.  The 10 percent for VASRD code 5003 would then have been added for a combined rating of 64 percent.  The final percentage would then be rounded down to 60 percent.

3.  The applicant should have been placed on the TDRL with a disability rating of 60 percent.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That DA Form 199 dated 10 August 1999 as pertains to the applicant, item 8 be corrected by:

     a.  correcting the VASRD code 5299/5270 entry to read VASRD code 5270, fusion of both ankles in neutral position, 30 percent for one ankle combined with 30 percent for the other ankle;

     b.  amending the line beginning “Left ankle 30 + right ankle 10…” to read “Left ankle 30 + right ankle 30 = 51 + bilateral factor of 5.1 = 56.1 or 56;”

     c.  deleting the entry for VASRD code 5271, arthritis right ankle; and

     d.  amending the line beginning “Disposition:…” to read “Disposition 56 + 10 = 60 + 10 = 64 = 60.”

2.  That all Department of the Army records be corrected by showing that the applicant was placed on the TDRL on 9 November 1999 with a 60 percent disability rating.

3.  That the applicant be paid any and all retired pay due him as a result of the above corrections retroactive to 9 November 1999.

BOARD VOTE:  

__jns___  __esc___  __cmf___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000039889	
SUFFIX		
RECON		
DATE BOARDED	20000803	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	108.02	
2.		
3.		
4.		
5.		
6.