MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            03 JULY 2003                  
	DOCKET NUMBER:   AR2002082957

	I certify that hereinafter is recorded the record of consideration 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. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Patrick H. McGann, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, physical disability retirement.  

APPLICANT STATES:  That the 10 percent disability rating that the applicant received for his fracture is inadequate.  His fracture that was supposedly healed, was not in fact healed.  After three surgeries and 2 years and 9 months, his leg is still not healed to the point that he is qualified in law enforcement.  The              10 percent rating prevents him from qualifying for VA vocational rehabilitation as stated in the current bone scan report.  There is still increased activity at the fracture site as well as post traumatic change in the right ankle.  He now has pain from bone spurs.  The Physical Evaluation Board (PEB) determined that his condition was fully healed; however, a second PEB determined that his condition was healing and not healed.  The 10 percent rating is unjust.  X-rays and bone scans show that his leg is not healed.  A VA doctor told him that the rod cannot be removed because his leg was not healed.  His tibia is not strong enough without that rod or internal fixation.  They [doctors] want to wait another six months.  He is emotionally stressed.  His ankle pain is getting worse.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered on active duty on 15 August 1996 and trained as a military policeman.

Medical records show that he was treated for pain to his left knee in December 1996.  In September 1997 he was treated for an ankle sprain.

A 2 July 1999 ambulance report from the Darnell Army Community Hospital at Fort Hood, Texas, shows that the applicant kicked at a ball, hitting the ground with his right leg.  The leg bent above the ankle, making a loud pop.  

A 3 July 1999 operative report shows that the applicant had a closed right tibial/fibular fracture to his right leg, injuring it while playing soccer.  He underwent a closed reduction and locking intermedullary (IM) reamed nail placement.  Subsequent to the operation, a splint was applied to the tibia and he was transferred to the recovery room.  There were no complications.

Thereafter, the applicant underwent physical therapy and continued follow-up for his fracture.

On 9 February 2000 the applicant received a permanent physical profile serial of 1 1 3 1 1 1 for his fracture.  A 6 March 2000 medical report shows that the distal interlocking screws were removed from his right tibial IM nail.  That report indicates that the applicant had been walking for five weeks, but used crutches for long distances, and that he said that he had been working on his range of motion since surgery.  The operative report indicates that the applicant had done well since his first operation, but was experiencing pain in the region of the distal interlocking screws, especially with wearing military boots.  There were no complications during the operation, and the applicant was transferred to the recovery room.  He was then discharged from the hospital. 

The applicant continued to be treated for his condition, receiving medication for his pain on occasions.  A 17 March 2000 medical report indicates that the applicant stated that his ankle was getting worse, and a 6 July 2000 report indicates that he was unhappy with the treatment that he was receiving.  He continued to be seen for his condition.  On 28 July 2000 he underwent another operation for exchange nailing of the right tibia and a right fibulectomy.  The preoperative diagnosis was nonunion of the right tibia, status IM nailing.  He tolerated the procedure well without any type of complications.  He then had a lateral incision made down the lateral aspect of the distal leg, and a dissection down to the tibia, at which time a 3-centimeter section of fibula was removed.  The wound was closed.  There were no complications.   

The applicant was discharged from the hospital on 1 August 2000.  

He continued to be treated subsequent to his operation, and in October 2000 complained of leg pain, which he stated that he had for a year.

On 27 November 2000 the applicant's commanding officer, in a memorandum to Brooke Army Medical Center at Fort Sam Houston, Texas, stated that the applicant was physically incapable of reasonably performing his duties as a military police officer because of his chronic leg problems.   

His treatment continued.  A 23 January 2001 medical report indicates that his tibial pain was resolved but the applicant had daily pain to his fibula.  On           14 February 2001 the applicant received a physical profile serial of 1 1 3 1 1 1 because of the tibial nonunion, right tibia.  

A 21 February 2001 Medical Evaluation Board (MEB) summary indicates that the applicant continued to have significant pain associated with his multiple surgical procedures and was unable to continue as a worldwide deployable asset.  His pain was present throughout the day, and required narcotic pain medication.  He did not awake at night with the pain; however, the symptoms were significant enough where he was no longer able to participate in any recreational activities.  His condition was diagnosed as tibial nonunion, right tibia.  His pain rating was moderate and constant.  The prognosis was that he had demonstrated progression towards healing of his nonunion, however, might require a fourth surgical procedure.  He had a follow-up appointment where the final decision on whether he might require the additional procedure would be made.  It was likely that he would eventually obtain union of the fracture site, however, it was unlikely that he would be able to return to a fully deployable soldier.  The examining physician recommended that he be referred to a PEB. 
In a 28 February 2001 statement, the applicant said that it had been twenty months since his injuries, three surgeries, hours of physical therapy, and day after day of pain and frustration.  He could still barely walk without discomfort.  He stated that in recent weeks he had been experiencing pain in his right ankle, just by walking around.  He stated that he occasionally had hard pains and weakness in his knee.  He stated that he had been training to be a law enforcement officer; however, his military career is ended, and now he could not be a civilian police officer, at least not in the near future. 

On 8 March 2001 a MEB determined that the applicant should be referred to a PEB because of his tibial nonunion, right tibia, with a pain rating of moderate and constant.  The applicant agreed. 

A 21 March 2001 addendum to the MEB indicates that the applicant was seen on 8 March 2001 and the evaluation revealed that his tibial pain had resolved, but he still had pain laterally over the fibula with prolonged activities, standing, and walking.  He had excellent alignment.  He demonstrated nonfocal tenderness but no evidence of swelling or synovitis over the anterior aspect of the tibia.  He had no pain with resisted dorsiflexion of the ankle or extreme stretch of the ankle.  Range of motion was normal.  Radiographs revealed well-healed fractures.  There was a small area of defect in the medial cortex of the tibia, but otherwise his fracture was fully healed.  His condition was diagnosed as pain over the fibula status post a tibia-fibula fracture consistent with scar.  The applicant elected not to have surgical explorations to release the scar.  He would undergo continued treatment with ultrasound and he could perform activity as tolerated.  Surgery was not indicated as his fracture was fully healed.

On 26 March 2001 the applicant agreed with the findings and recommendation of the addendum to the MEB.

On 30 March 2001 a PEB determined that the applicant's condition prevented his reasonable performance of duties required by his grade and military specialty, and recommended that the applicant be separated with severance pay with a     10 percent disability rating. 

On 12 April 2001 the applicant was seen by an orthopedic physician at the Scott White Hospital in order to obtain a second opinion relative to his condition.  The examining physician stated that the applicant walked with a slight antalgic gain and had a 5 millimeter shortening on the right side.  He had palpable pain over the site of callus in the distal third of the tibia.  There was no pain with palpation over the fibular shaft.  He had normal neurovascular function with normal function of the knee and ankle.  There was no pain over the knee at the rod insertion site. Radiographs suggested persistent radiolucent line across the fracture site, although there was significant callus particularly laterally.  There appeared to be nonunion of a site of mid fibular bone resection.  The impression given was questionable delayed union of the tibia following exchange nailing.  The doctor recommended continued observation and repeat follow-up films in two to three months, and if they did not show continued progression toward healing, consideration should be given to another exchange nailing.  

On 22 May 2001 a PEB reconsidered his case based on the addendum to the MEB, and determined that he was physically unfit because of his chronic right leg pain, due to healing delay union of the tibia under VA Code 5099 and 5003.  His pain was rated as slight/frequent in accordance with the Physical Disability Agency policy memorandum #13.  The PEB recommended that he be separated with a 10 percent disability rating.

The applicant did not concur but waived a formal hearing.  He indicated that his appeal was attached to his nonconcurrence; however, his appeal was not submitted with his application to this Board.

A VA medical record shows that the applicant was examined at the Central Texas Health Care Facility on 9 October 2001.  His condition was diagnosed as residue post-op tibiofibula fracture with non-union of fibula.

He continued to be treated for his ankle pain until his discharge for his physical disability on 12 October 2001.

On 18 October 2001 the VA granted the applicant a 10 percent service connected disability rating for residual of postoperative tibiofibula fracture with non-union fibula, and a zero percent rating for scar, residual of postoperative tibiofibula fracture with non-union fibula.  

On 14 November 2001 the applicant sent a notice of disagreement to the VA, stating that x-rays showed that his tibial fracture was not fully healed on one side.

A 15 February 2002 radiographic report of the applicant's tibia and fibula shows   that he had a nonunited fracture, middle third of the shaft of the fibula with old healed fracture of the tibia with internal fixation.  A 26 February 2002 radiographic report shows that the applicant had a metallic rod through most of the tibia, a healed mildly deformed distal tibial fracture, and a nonunited transverse fracture proximal fibula.  He also had an old healed oblique fracture of the distal fibula.  

A 26 February 2002 VA orthopedic report shows that the applicant had minimal tenderness over the fracture site.  There was some tenderness over the proximal screw, stabilizing the IM rod.  There was a well-healed surgical incision anterior to the knee.  There was a well-healed surgical incision on the medial aspect of the ankle from removal of the previous screws.  X-rays showed some bony ridging across the fracture site, lateral aspect.  There was still an opening on the medial aspect.  The assessment given was a slow healing fracture, right tibia. 

He underwent a bone scan on 18 March 2002.  The findings indicated a small focus of increased activity at the junction of the proximal and middle one-thirds of the right fibula.  Increased activity was seen in the proximal aspect of the right tibia just below the condyles at the junction of the middle and distal one-thirds and the ankle joint.  Increased activity was seen in the inferior or posterior aspects of the calcanei.  The impression given was post traumatic and/or degenerative change in the right ankle and stress changes versus calcanel spurs bilaterally. 

A 28 March 2002 orthopedic report indicated that the applicant had a slowly healing osteotomy site, which would probably not require further surgery if it did go on to a nonunion.  He had a slowly healing tibia fracture, which appeared to be making progress in healing.  There was no evidence of rod infection.  

In response to the applicant's notice of disagreement, the VA in a 9 May 2002 rating decision granted the applicant a 20 percent disability rating for his residual of postoperative tibiofibula fracture with non-union fibula.     

The applicant was treated at the Central Texas Health Care Facility on 16 July 2002 for depression.  The treatment report indicates that he was unemployed because of his slowly healing leg fracture, that his father just had a triple bypass, and that he was having marital/sexual difficulties.

A 24 September 2002 orthopedic report indicates that the applicant reported that his right leg continued to hurt when he ran, particularly the ankle as well as the lateral aspect.  The impression given was that there was no crepitance on ankle motion.  The right tibia was non-tender and the right fibular area was mildly tender around midshaft to slightly distal to midshaft.  X-rays showed that the right tibial rod was in good position and that the tibia was well-healed.  The distal fibular fracture appeared to be well-healed.  The proximal fibular osteotomy had bridging callus but was still visible on x-rays.  There were early degenerative changes in the ankle.    

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.

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.

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.  

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 determined the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations.

Diagnostic code numbers appearing opposite the listed ratable disabilities in the VASRD are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis by the VA, and extend from 5000 to a possible 9999.  When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be “built up.”  The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be “99” for all unlisted conditions.  

Army Regulation 635-40 states in pertinent part that not all of the general policy provisions of the VASRD apply to the Army, and that Section I of Appendix B replaces or modifies paragraphs of the VASRD.

VA Code 5003 pertains to degenerative arthritis and indicates that a 10 percent rating will be given based upon x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.  Army Regulation 635-40 provides for a    10 percent raring for pain conditions rated by analogy to degenerative arthritis for each major joint (or grouping of minor joints) with objective limitation of motion plus x-ray evidence.

The Physical Disability Agency policy/guidance memorandum  #13 provides guidance for rating medical impairments for pain, and states that a 10 percent rating is warranted for pain that is slight and frequent.

Title 38, United States Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.
 
The VA makes its own decisions concerning entitlement to disability compensation and ratings.  The VA is not bound by decisions of the Army; and likewise, the Army is not bound by VA decisions.  The VA may rate any service-connected disability.  Army ratings are permanent.  VA ratings may fluctuate depending upon the future severity of the disability.   

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.
  
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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant's discharge with a 10 percent disability rating was proper and in accordance with the VASRD and Army regulations.  The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

2.  The VA is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, the applicant's medical condition may be sufficient to qualify him for VA benefits based on an evaluation by that agency.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__RVO__  __KAN __  ___PHM _  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002082957	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030703	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.