PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           14 FEBRUARY 2002
	DOCKET NUMBER:   AR2001061802

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John E. Denning		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 record be corrected to show service on active duty with all pay and allowances from 8 January 2001, the date that he was discharged with disability severance pay, until 1 August 2001, the date his physician indicated that he could go back to work.  

3.  The applicant states that after he was discharged from the Army, he had two operations to correct the nonunion of the femur fracture of his left leg.  Had he been properly examined prior to his discharge, the nonunion would have been evident.

4.  The applicant’s military records show that he enlisted in the Army for four years on 1 June 2000 and was assigned to Fort Knox, Kentucky for training.

5.  On 23 June 2000 the applicant sustained a left femur fracture during training.  His injury was in line of duty.  A 27 November 2000 Medical Evaluation Board (MEB) narrative summary indicates that he underwent open reduction with intermedullary nailing of the left distal femoral shaft fracture and was ultimately discharged to convalescent leave approximately one week to 10 days after the surgery.  Approximately 10 weeks after the surgery he underwent manipulation under anesthesia to improve his motion.  Subsequently, he underwent aggressive physical therapy and his motion ultimately improved to 120 degrees, still with complaints of pain around his knee.  The pain was more global and other ligamentous testing revealed no abnormalities.  He was noted to have a prominent screw in the distal inner locks of the femoral nail and underwent a simple injection there diagnostically to see if it improved his symptoms about his knee, and it did.  However, the injection did not provide any lasting relief.  Ultimately, he underwent removal of the distal prominent screw, which improved his symptoms where range of motion was less painful.  He continued to complain of pain, but still had excellent radiographic evidence of healing with no residual deformity of the femur.  Because of the residual complaints of knee pain, it was elected to medically separate him from the Army with an allowance for potential return after a period of 12-18 months after the injury to rehabilitate his left leg.  

6.  Physical examination of his left leg and thigh revealed well healed midline incisions above and below the patella.  There was mild effusion.  His range of motion was from 5 to 120 degrees with some mild pain at more extremes of flexions.  There was no laxity to the medial or lateral collateral ligaments; the anterior cruciate ligament was intact with Grade I Lachman’s with a firm endpoint and negative pivot.  There was no posterior cruciate ligament insufficiency.  He had no joint line tenderness, nor any meniscal signs with a negative McMurray’s. He was otherwise neurovascularly intact distally.  Examination of the quadriceps revealed a moderate amount of wasting with subjective decreased weakness.  
An x-ray examination of his left femur revealed the hardware to be intact with no migration.  The entry point was found to be in adequate position with no prominence of the femoral nail.  There was evidence of near complete healing of the femoral fracture with an abundant callus.     

7.  The applicant’s condition was diagnosed as left distal femoral shaft fracture with residual knee pain.  He walked with the aid of a cane and had moderate quadriceps atrophy and decreased strength in his left leg.  His pain rating by AMA guidelines was slight and frequent.  The examining physician stated that full recovery [of his condition] was expected, but the amount of time required to recover was expected to be 12-18 months.  His current condition did not allow him to continue training and he did not meet the medical standards for retention in the Army.  He stated that with an adequate recovery period of 18-24 months, he would return to full function, and a waiver might be recommended at that time after full reexamination.  The MEB recommended that the applicant be referred to a Physical Evaluation Board.  The applicant concurred.

8.  On 11 December 2000 a PEB determined that the applicant was physically unfit because of status post fracture of the left distal femoral shaft fracture with residual knee pain; cane required for ambulation – rated as moderate knee disability (VA Codes 5299 and 5255).  The PEB recommended a combined rating of 20 percent and separation with severance pay.  The applicant concurred and waived a formal hearing of his case. 

9.  The applicant was discharged on 8 January 2001.  He had 7 months and 8 days of service and received severance pay in the amount of $2338.20.

10.  On 30 January 2001 the applicant underwent an operation at Eglin Air Force Base in Florida for removal of femoral rod; takedown of nonunion; packing of nonunion site with antibiotic impregnated cement beads, irrigation and drainage of the knee and the nonunion site.  There were no complications.  He was taken to the recovery room in a stable condition after the operation. 

11.  In a 31 January 2001 letter the Air Force major who performed the above mentioned operation recounted his involvement with the applicant’s care [while he was still on active duty], to include performing a manipulation approximately three months after his injury.  He stated that he did not see the applicant again until two weeks ago, when he came to the clinic concerned about persistent, severe pain in the knee and limited range of motion.  He stated that at that point he was six months post-injury and he anticipated that he should have had complete healing; however, x-rays showed definite evidence of a nonunion of the femur fracture with marked osteolysis around the femoral rod and single remaining distal interlocking screw.  The rod was on the verge of penetrating into his knee joint and there was subtle evidence to raise concern about an infected nonunion and possibly osteomyelitis.  Physical findings showed focal tenderness directly over the fracture site and over the distal femur and knee range of motion of 0-120 degrees.  Laboratory studies and radiographic studies strongly suggested an infected nonunion and osteomyelitis of the distal femur.  He operated on the applicant [as noted above].  Intraoperative findings showed chronic granulomatous reaction around the fracture site, fibrous nonunion, and severe osteolysis of the distal femur around the rod and locking screw.  The doctor described the procedure, stated that the applicant would remain on IV antibiotics until final cultures were returned.  He stated that he was optimistic that his femur fracture would heal and that he would be allowed to pursue any activities without limitations; however, recovery was expected to take approximately six months, and there was still the potential that he might require subsequent surgeries.  The doctor stated that he had subtle evidence of a previously unrecognized ligamentous injury that might require future reconstructive surgery depending on his recovery.  He stated that the applicant should be accorded all of the benefits of active duty military throughout his treatment and recovery.  He also stated that his discharge from the Army should be rescinded.

12.  In a 26 February 2001 letter to the applicant, the Army Physical Disability Agency (USAPDA) stated that it had received the above letter from the applicant’s physician on 6 February, and stated that in a case such as his, it would contact the physician to ascertain the need for follow up care, prognosis, and the need for possible continuation on active duty until his condition reached optimum medical treatment benefits.  However, because he had been discharged, the agency could not pursue his case any further.  The agency stated that it was possible that an injustice was committed.  It informed him that if he had been diagnosed with osteomyelitis, or his leg injuries remained in a state of nonunion, he might be entitled to have his disability compensation increased.  It also informed him that if it was determined that his nonunion should have been discovered before his separation, it was possible that his records would be corrected to reflect retention on active duty.  He was advised to apply to this Board, if he believed that an error or injustice had happened in his case.

13.  On 6 February 2001 that same physician again operated on the applicant performing an iliac crest bone graft; internal fixation of left femur nonunion.  There were no complications.

14.  On 10 April 2001 that physician again operated, performing manipulation under anesthesia, surgical arthroscopy of the left knee and arthroscopic lavage with debridement of chondral lesions.  There were no complications.

15.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

16.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

17.  Congress established the VA Schedule for Rating Disabilities (VASRD) as the standard under which percentage rating decisions are to be made for disabled military personnel.  Percentage ratings in the VASRD represent the average loss in earning capacity resulting from diseases and injuries.  The ratings also represent the residual effects of these health impairments on civil occupations.  

18.  Part 4, paragraph 4.1 of the VASRD states that the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determine the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations.

19.  Title 10, United States Code, Section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

CONCLUSIONS:

1.  On 27 November 2000, approximately five weeks prior to the applicant’s discharge a MEB determined that he was not fit for retention in the Army because of his leg fracture with residual knee pain, noting however, that full recovery was expected within 12-18 months.  Based on its evaluation, the PEB recommended discharge with a 20 percent disability rating.  The applicant concurred with the determinations of both the MEB and the PEB.  It appears that at that time, although experiencing pain and undergoing physical therapy, the disability rating was correct and he was discharged accordingly.  X-ray of his left femur, as indicated in the MEB narrative, showed that there was evidence of near complete healing of his fracture.  There was no evidence of osteolysis or nonunion.  He was on his way to recovery.  The Air Force doctor who performed surgery on the applicant after his discharge stated that he anticipated that the applicant’s injury would have healed completely six months after his injury.  Consequently, it appears that based on the November 2000 MEB, the decision to discharge the applicant with a 20 percent disability rating in January 2001 was correct.      

2.  Nonetheless, three weeks after his discharge, the applicant underwent surgery to correct the femoral fracture nonunion.  The doctor who performed the surgery stated that x-rays prior to the surgery showed definitive evidence of a nonunion of the femur fracture with marked osteolysis around the femoral rod and single remaining distal interlocking screw.  The rod was on the verge of penetrating into his knee joint and there was subtle evidence to raise concern about an infected nonunion and possibly osteomyelitis.  After his surgery on       30 January 2001, the applicant underwent a bone graft on 6 February, and arthroscopic surgery on 10 April 2001.  

3.  Sometime between his 27 November 2000 MEB and the middle of         January 2001, the date his doctor saw him, his leg fracture had deteriorated markedly.  Whether or not physical examination or x-rays taken immediately prior to his 8 January 2001 discharge would have shown this deterioration is not known; however, it is probable considering the short length of time involved.  The Physical Disability Agency indicated that it was possible that an injustice was done the applicant.  And, although the Army’s actions in this case are correct, considering the surgeries the applicant has undergone almost immediately after his discharge, this Board agrees with the assessment of the Physical Disability Agency.     

4.  Consequently, and in the interest of justice, it would be appropriate to grant the applicant’s request.  The applicant’s doctor stated on 31 January 2001 that the applicant’s time course for recovery was expected to take approximately six months, around the August 2001 time period.  The applicant has stated in his request that his doctor released him to go back to work on 1 August 2001.  That date is accepted by the Board.

5.  Accordingly, any order discharging the applicant on 8 January 2001 should be rescinded.  That order is null and void and of no force or effect.  The applicant’s record should be corrected to show he had continuous active duty until                 1 August 2001.  The applicant should receive all due pay and allowances based on this action.  He should then be discharged effective on that date because of physical disability as before, i.e., 20 percent disability rating.  Any additional severance pay should be granted him based on this new discharge date.  

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by: 

     a.  rescinding any order discharging the applicant from the Army on                8 January 2001.  Any such order is null and void and of no force or effect;

     b.  showing that the applicant had continuous active duty service until             1 August 2001 with all due pay and allowances; and

     c.  discharging the applicant on 1 August 2001 because of physical disability with a 20 percent disability rating, and granting him additional severance pay based on this new discharge date.     

BOARD VOTE:  

__JNS __  __BJE___  __JED __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John N. Slone_____
		        CHAIRPERSON

INDEX

CASE ID	AR2001061802	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020214	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	100.00	
2.	108.00	
3.	1203	
4.		
5.		
6.