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Army Discharge No MEB on Social Security Disability 1 year before discharge

VAJumper

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Jason, Mike and or other moderators. On my Facebook Group, Military and Veterans with RSD, a spouse just contacted me stating her husband had severe RSD in both legs and has been on SSDI since before his discharge June 2010. Yes discharge. He was never medically boarded and was administratively separated. What is their first step to take--file a claim with the BCMR? The VA is saying it will take over a year to process their claim. If he gets boarded and retired under the IDES, his claim would be done way before that. Not sure if they have the wherewithal to figure out what to do or who to contact and looking for some expert advice to forward to them. :mad:
 

Jason Perry

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Doug,

He can either file with the BCMR or directly with the Court of Federal Claims. Was he a Guard/Reserve member and, if so, was he on orders?
 

VAJumper

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He was full-time active duty and discharged after two years. Wheelchair-bound, he was given an article 15 for being late for formation even after his doctors had provided him a medical excuse. Fighting depression and anxiety, he was given an Army 5-17 discharge for mental issues--long after being diagnosed with CRPS. Mental issues and CRPS go hand in hand due to the unrelenting 24/7 incapacitating pain. If he does a BCMR, would they have to put him back on active duty if an MEB was approved? He doesn't want that due to the difficult time his unit put him through. His CRPS is in both legs.
 

Jason Perry

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A few options here...

Claim for wrongful discharge: Either go to BCMR or Court of Federal Claims (CoFC).

Claim for disability retirement: He must go to BCMR first (because he never had a PEB before separation). If that does not resolve in his favor, he can go to CoFC on appeal.

If he does BCMR, he would most likely not be placed on orders unless he were to ask for that. Probably the same with CoFC, too.

In this case, I tend to think BCMR may make more sense. I was thinking in my original response that he was interested in a wrongful discharge claim. I might assert both issues anyway, but it sounds like he is more interested in military disability retirement.
 

NCloud82

PEB Forum Regular Member
I am the above named spouse; although, my husband sits right next to me as I write this. I suprise myself that I have made it this far. Just continue to search for the answers and eventually you will get the truth.
Question 1: Perhaps we could discuss what a BCMR is?

Questions 2: No more active duty. Perhaps... If they gave me every bit of my rank back, put me in a WTU, close to my current home, 7 months after discharge?

06/18/2008 - 06/22/2010 Dates of Service
RSD dianosis from three different military doctors that all said he was wheelchair bound in Feb. 2010
11/2009 - INITAL INJURY after taking PT test (next morning work up; unable to walk)

2 hosptial visits for RSD (falling related) Middle of Feb 2010 and June 2010
MAY 2010: APPLIED FOR SSD while still on Active Duty
June 13th: went to hosptial for fall and held for 5 days for observations and stabilazation of extreme foot pain caused from RSD
June 18th: released from hospital
June 22nd 2010: release from Active Duty service under Chapter 5-17.. Separation Code JFV, which from my understanding is...

JFV - Physical condition, not a disability, interferring with performance of duty, USN - Enlisted

Unsure if this is accurate. as well

His condition is well documented through his STRs beginning after the PT test stated above. No prior injury to that and inital military examiner says "NORMAL FOOT". No foot pain or injury prior to this. First Plantar Fascitis Diagosis in Novemeber, right after the incident. Then three months, two doctors that cannot explain the pain, and he has a Diagnosis for RSD.

CoC tried to chapter out on patterns of misconduct, another COL (whom I was seeing for mental health) stepped in and said NO WAY.. and recommeneded this administrative chapter to prevent me from being chaptered under bad terms.

SSD awarded in August after filing in May prior to discharge. SSD declared him disabled as of NOV. 4, 2009, which is when the inital injury happen. He has never walked the same since, and has never been able to do the work that he did before that, so I would say they are accurate.

Filed a QS claim the day before his discharge. His company made it extremely hard to make it to this appointment [which is an hour away at the next closest post]. Had to call and reschedule.

Just had his first VA exam on Jan. 17, 2011
X-Rays today Jan. 24, 2011
X-Rays next mondy Jan. 31

I was only surfing face book when I found a group for Veterans & Military Service Members with RSD aka CRPS. I was just telling a little bit about our story and already he has done a lot.

Questions ???

N. Cloud
 

Jason Perry

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The Board for Correction of Military Records (BCMR) is the highest level of administrative review in the military. Here is a link to a forum with many posts on the subject: Board For Correction of Military Records

It sounds like he has a strong claim. Best of luck and feel free to post any questions along the way!
 

maparker

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What about filing for a 10 USC 1554 Disability Review Board? Congress recently expanded this board to cover enlisted memebrs as well. Below is 10 USC 1554 and the recent change from the 2011 NDAA.

Mike


10 USC 1554. Review of retirement or separation without pay for physical disability


(a) The Secretary concerned shall from time to time establish boards of review, each consisting of five commissioned officers, two of whom shall be selected from officers of the Army Medical Corps, officers of the Navy Medical Corps, Air Force officers designated as medical officers, or officers of the Public Health Service, as the case may be, to review, upon the request of an officer retired or released from active duty without pay for physical disability, the findings and decisions of the retiring board, board of medical survey, or disposition board in his case. A request for review must be made within 15 years after the date of the retirement or separation.

(b) A board established under this section has the same powers as the board whose findings and decision are being reviewed. The findings of the board shall be sent to the Secretary concerned, who shall submit them to the President for approval.

(c) A review by a board established under this section shall be based upon the records of the armed forces concerned and such other evidence as may be presented to the board. A witness may present evidence to the board in person or by affidavit. A person who requests a review under this section may appear before the board in person or by counsel or an accredited representative of an organization recognized by the Secretary of Veterans Affairs under chapter 59 of title 38



SEC. 533. CORRECTION OF MILITARY RECORDS.



(a) MEMBERS ELIGIBLE TO REQUEST REVIEW OF RETIREMENT OR SEPARATION WITHOUT PAY FOR PHYSICAL DISABILITY.—Section 1554(a) of title 10, United

States Code, is amended—



(1) by striking ‘‘an officer’’ and inserting ‘‘a member or former member of the uniformed services’’; and



(2) by striking ‘‘his case’’ and inserting ‘‘the member’s case’’.



(b) LIMITATION ON REDUCTION IN PERSONNEL AS SIGNED TO DUTY WITH SERVICE REVIEW AGENCY.—



1559(a) of such title is amended by striking ‘‘December 31, 2010’’ and inserting ‘‘December 31, 2013’’.
 

Jason Perry

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Mike,

I think it is an option, however, I don't tend to favor this board. If it were to grant relief, then great. But, I would be concerned about the composition/training of the board, the delay in getting to BCMR if necessary (and then Federal Court) and the potential for giving ammunition to the BCMR to deny relief. I favor the BCMR in cases where you have to exhaust administrative remedies only because it can create a record that strengthens the case at the Court of Claims and it gets you into court (with the backlog growing at BCMR/PDBR, I have greater concerns about members being denied access to courts due to statute of limitations issues). It is a members right, though, to have this board (however, I am not sure how easy it is to assert that right and what the consequence is for denial....with some rights, there is no consequence if the government denies; this sounds shocking, I know, and the explanation of how this operates would take a long time to write here - this comment is more directed to other readers by way of explanation, not to you Mike).

I know we have talked about the difficulty in getting these boards, too. Can you refresh my memory (and also to share with the forum readers) if the Army is pushing back on conducting these boards? What is the take in the AF/DON? I recall that at least one of the military departments was trying to blow off this requirement to conduct these boards. Did I understand that correctly? Any updates on this?
 

maparker

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Jason,

it was the Air Force. I am working the issue by helping an AF EPTS airman file and get a documented response one way or the other. The Army and Navy have established procedures for Disability Review Boards.

Mike
 

NCloud82

PEB Forum Regular Member
To the Board of Military Corrections,

I would like to request consideration of an MEB and subsequent PEB that were never completed before discharge. In support of this requested consideration is the basis of evidence to find that I was unsuitable for duty prior to my discharge. Each item of evidence is represented by an uppercase letter; following pages of that evidence are referenced as the uppercase letter followed by the page number of that evidence.

A. A1: My first piece of evidence is the Social Security Determination that found me, Nicholas Dale Cloud disabled as of November 4, 2009. This is the date of initial injury. I had recently taken a Physical Training Test and the following day I awoke to extreme pain in my feet. A4: Includes a future review in December 2011 stating possible improvement. (4 pages; A1, A2, A3, A4).

B. Plantar Fasciitis Diagnosis: I will discuss a lot about this condition in association to my Diagnosis of Reflex Sympathetic Dystrophy. Close attention to medical dates and times are well noted. Often the morning appointments describe the foot as normal and with no deformities; where afternoon and evening appointments often noted by the presence of pes planus because of the amount of swelling. [16 Nov 2009 @ 1350 EDT]

C. An x-ray scan reveals degenerative changes beginning at the first metatarsophalangeal joint bilaterally on November 16, 2009. [@ 1501 EDT]

D. This package includes information from the off post podiatrist ultrasound on December 4, 2009 @ time unknown with Dr. Becker of Atlantic Foot and Health. D2: denotes a positive test for Tinel’s sign and reveals restrictions in range of motion to include but not limited to dorsiflexion of the ankle joint with stiffness in the Achilles tendon and evidence of a valgus deformity of the right and left calcaneus. D3: discusses further in detail the limits of ROM only 30 days after the initial injury. D4: discusses in detail the ultrasound examination that revealed inflammation of bilateral proximal plantar fascia that is easily seen in both the longitudinal and transverse scans. Other interesting notes include a linear hypo echoic band of tissue with its origin at the medial plantar tuberosity of the calcaneus is noted. D4: reports the impression the ultrasound as 1. Calcaneus bursitis 2. Equinus deformity 3. Plantar fasciitis 4. Difficulty in walking 5. Foot pain 6. Calcaneal spur 7. Tenosynovitis (4 pages; D1, D2, D3, D4).

E. December 09, 2009 an appointment for administrative purposes states: NEEDS LOI FOR MEB (3 pages; E1, E2, E3).

F. December 10, 2009 @ 0910 EDT an appointment for administrative purposes states: LOI FOR MEB PER MAJ MACK. Additional information regarding treatments that were utilized can be found on F3 and treatments include but are not limited to the rolling of feet on golf balls and coke colas bottles with no relief in pain. Orthotics are recommended at this time. (4 pages, F1, F2, F3, F4).

G. The next piece of evidence to injury unfitting for service prior to discharge is on February 01, 2010 @ 1420 EDT, I was given a very extensive profile, and a cane to aid in walking. Unable to find this profile, BUT still I believe worth an honorable mention the profile had clearly stated on it MEB STARTED.

H. On February24, 2010 @ 1054 EDT the evidence supports an appointment with a case manager for the first time reviewing the above facts of calcaneus bursitis, calcaneus spur, tenosynovitis, with difficulty walking and requiring a wheelchair. (2 pages, H1, H2).

I. Item I: is an MRI report with an exam date of February 27, 2010 @ 1001 EDT. This MRI shows evidence of a sprain of the posterior talofibular ligament, with posterior joint effusion.

J. This appointment was with a Podiatrist on March 02, 2010 @ 1226 EDT. Although, this appointment is still early in the day, Fort Stewart, GA is an hour from my duty station and after the drive the bottoms of my feet were swollen and discolored. Let evidence J2: provide several more conservative treatments that were also attempted including but not limited to Extracorporal Shockwave Therapy to bilateral feet under local anesthesia but states the peripheral nerve blocks did not fully relieve the pain of the shockwave therapy. It also discusses several narcotic medications that I needed to take just too simply manage the pain. J3: shows that visual examination of the foot stating it showed abnormalities and swelling. J4: mentions the use of orthotics as use for treatment and also gives the diagnosis for Reflex Sympathetic Dystrophy. Please observe the note to the Commander of PFC Cloud that states he was originally being treated for bilateral plantar fasciitis but has since developed a Chronic Regional Pain Syndrome also known as Reflex Sympathetic Dystrophy of both feet necessitating the need for these medications. He even notes a consideration of admission at Winn if I am unable to tolerate the physical therapy so that anesthesia can administer fem-sciatic nerve blocks. (5 pages, J1, J2, J3, J4, J5).

K. Visit to PCM regarding diagnosis from prior appointment on March 02, 2010. March 03, 2010 @ 1404 EDT where Dr. Swan feels that a neurological disorder would help account for the severity of my pain given the lack of other physical pathology. He also notes a probable entry into WTU.

L. March 08, 2010 @ 0830 EDT with Michael Crowell at Physical Therapy discusses findings of a small probable bone island in the calcaneus of the left foot. L2: indicates a good prognosis for reduction of symptoms but does not state that these symptoms will ever be eliminated or go away. I was counseled to understand that Complex Regional Pain Syndrome also known as Reflex Sympathetic Dystrophy is a life-long disorders that affect the way your nervous system interprets the pain. It feels like I have a broken foot every day! It is my understanding these symptoms may possibly go into remission but a following flare-up is likely. L2: also indicates some treatments that had not yet been attempted until that point, including but not limited to contrast baths, weight shifting, and a TENS to the plantar surface of the feet (3 pages, L1, L2, L3).

M. Appointment with Podiatrist Major Michie on March 10, 2010 @ 1241 EDT brings it to our attention that my condition has not improved. M2: states the chief complaint as bilateral foot pain for the past five months with worsening in the past month. X-rays of the left foot on M5: show mild spurring beginning dorsally about the bilateral 1st metatarsophalangeal joints. Right foot x-rays indicate the same spurring beginning dorsally at the 1st metatarsophalangeal joints. MRI also reveals previously stated probable bone island in the calcaneus. (12 pages, M1, M2, M3, M4, M5…).

N. March 22, 2010 @ 1301 EDT with PCM shows a change in medications as directed by neurology. Please take note of N3 where PCM Dr. Swan written statement indicates increasing bilateral arch pain and Achilles tendon pain for the last year; pending VERY SEVERE since December 2009. He states that we have tried many approaches to treatment without any relief in pain and discusses how the swelling increases by the day’s end. He also states at that time, that I am essentially wheelchair bound. (3 pages, N1, N2, N3).

O. This item regards an escort to behavioral health on April 09, 2010 @ 1247 EDT because of depression secondary to the Reflex Sympathetic Dystrophy. Sandra Barrow discusses the physical problems in short by stating that I am currently wheelchair bound due to chronic neck pain and bilateral foot pain but developing problems with the unit have brought him here. (2 pages, O1, O2). Mental issues and Reflex Sympathetic Dystrophy go hand-in-hand to the 24/7 unrelenting pain.

P. I was not present for this piece of evidence, as the evidence supports I was admitted to Memorial Health Hospital for bilateral foot pain.

Q. The final piece of evidence is from my admission into Memorial Health Medical Center and consists of two evaluations and an EMG study. The first consultation from Dr. Greenberg on Q2 shows that an examination of the extremities shows no joint swelling or redness but muscle atrophy of both calves. Q3: provides information on current diffuse hypo reflexia and disuse atrophy. Later that same day Q5 reports the consultation from Dr. Woodbury with pain management where a review of system shows significant swelling of the lower extremities. Q6: continues the review of system by stating that the distal calf and bilateral lower extremity are remarkable for pain. Physical Exam showed discoloration of the great toe and a slightly cooler temperature. This document also shows that deep tendon reflexes were hypoactive to absent in both lower extremities at the patella, and completely absent in the tendo-Achilles as well. Q8 is the EMG interpretation. Item number three indicates isolated findings of bilaterally prolonged tibial F wave and irritability in mid gastrocs which may be caused by disuse atrophy. (8 pages, Q1, Q2, Q3, Q4, Q5, …).

All of the above facts happened prior to my discharge on June 22, 2010 and I request to the Board of Military Corrections for consideration of MEB and subsequent PEB that were never completed before discharge.

Thank you for your time and consideration,



Nicholas D. Cloud












Enclosures

DD Form 129: Application for Correction of Military Record under the provisions of Title 10, U.S. Code, Section 1552 (2 pages)

Narrative Summary (4 pages)

Supporting Medical Evidence (56 pages)



WOULD SOMETHING LIKE THIS BE SUFFICIENT?
 

Jason Perry

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I preface the following with the caveat that this may be fine and it might work to accomplish what you are seeking. That said, it is hard for me to critique much because I would approach it (as an attorney who does these types of filings as part of my practice) in a different way. Also, keep in mind that when I file BCMR applications, I am generally also sure to include the major arguments that I would raise in the Court of Claims should the claim be denied (it is necessary to do so because arguments not raised in administrative appeals to BCMR are not allowed to be raised at first time in BCMR applications).

Okay, caveats aside, here is my reaction:

1) I am not sure what relief you are seeking. That is, do you want them to rescind/remove your current DD214 and return you to duty for BCMR? Or are you asking for a disability retirement? If so, at what percentage? (I know you had mentioned concerns with return to duty...the point is, by reading this, I am not clear what specific action you want.) I normally ask for specific actions from the BCMR (i.e., "Request that applicant's DD214 be changed to reflect that he was not separated on DATE for REASON, but was instead (insert desired outcome) on DATE").

2) You reference one of the main issues, but it is not as clear as it might be that your condition required an MEB. I would normally either cite to specific provisions of AR 40-501, Chapter 3, or to specific documents. You are close to the mark on items F and G (although, ideally, I would get that profile! That is a "smoking gun"). In fact, I would consider re-organizing to make it clear why you are entitled to the relief you request. That might mean something like using a heading, "Medical Conditions Required an MEB and Referral to PEB Prior to Separation." Then listing what piece of evidence is supported by what regulation.

3) Aside from requiring an MEB, I would also include evidence or argument that your condition is "unfitting." That is what the PEB would have to find in order for you to be rated. You can find several posts on this site about "fitness" but essentially, this concept has to do with whether you could reasonably perform the duties expected of someone of your grade/MOS. I would include basic Soldier tasks (3-5 second rushes, construct a fighting position, march with a basic load for 2 miles, do APFT events) and well as MOS specific tasks.

4) It is not very clear to the reader that your were found completely disabled for SSDI purposes while still on active duty. The way I often handle this is by including a Chronology of Relevant Facts (there is no specified formal for these things....so this is just one way to skin this cat. Not saying that you must or should include this. I just find that it helps to draw attention to the important issues).

5) I am not sure the basis given for discharge. But, this may be something to address, that the basis stated was erroneous.

I don't mean to deflate what you propose to submit. I just point out a couple of issues that you may want to address and that caught my eye. Like I said before, this may work just fine and there is no "magic" formula or one right way to do these applications. I only offer my thoughts on what you posted.

I hope all goes your way!
 

NCloud82

PEB Forum Regular Member
Jason, Thank you very much. I only just started working on it. This would be my second draft and I have never filied for a BSMR before. So, I more than appreciate your words and will without question take them into consideration.
 

NCloud82

PEB Forum Regular Member
I found a medical statement
visit for: issue medical certificate incapacity: Temporary and P3 L issued in AHLTA so the patient may join the WTU
proof of permanant profile

<LI class="uiUfiComment comment_190185291009395 ufiItem ufiItem">P: Physical capacity or stamina. A general category encompassing conditions of the heart, lungs, gastrointestinal system etc not covered below
L- Lower extremities.
3- Signifies that the individual has one or more medical conditions which r...equire significant limitation.See More



<LI class="uiUfiComment comment_190185291009395 ufiItem ufiItem">Permanent level 3 or 4 profiles require the signature of 2 profiling physicians and the Physical Profile Board (PPBD) approving authority (a physician and almost always the Deputy Commander for Clinical Services (DCCS) for the profiling institution). Any change to or from a permanent 3 or 4 profile requires PPBD action. P3 or 4 profiles always require a MMRB or MEB/PEB before the soldier is available for deployment.




MIGHT THIS WORK?
 

NCloud82

PEB Forum Regular Member
To the Board of Military Corrections,

I would like to request that the current DD214 be changed to reflect that I, Nicholas D. Cloud, was not separated on June 22, 2010 for an Honorable Administrative Chapter 5-17, but instead was Medically Retired at PV1 with 100% with Special Monthly Compensation(m) for the loss of use of both feet on June 22, 2010 under multiple conditions; complicated mostly by a neurological condition affecting the perception of pain but accompanied by many other feet pathologies. In support of this requested consideration is the basis of evidence to find that I was disabled and unsuitable for duty prior to my discharge. Each item of evidence is represented by an uppercase letter; following pages of that evidence are referenced as the uppercase letter followed by the page number of that evidence.

A. My first piece of evidence is the Social Security Determination that found me, Nicholas Dale Cloud disabled as of November 4, 2009. This means that I was found disabled for the purposes of Social Security Disability eight months prior to my Honorable Discharge under Chapter 5-17. I had recently taken a Physical Training Test and the following day I awoke to extreme pain in my feet. (4 pages; A1, A2, A3, A4).

B. Plantar Fasciitis Diagnosis: I will discuss a lot about this condition in association to my diagnosis of Reflex Sympathetic Dystrophy. Close attention to medical dates and times are well noted. Often the morning appointments describe the foot as normal and with no deformities; where afternoon and evening appointments often noted by the presence of pes planus and swelling. This is a wonderful point in acquired pes planus due to military service as there is evidence after the diagnosis of pathologies, that the foot still occasionally showed a “normal” appearance but still with the presence of pain. [16 Nov 2009 @ 1350 EDT]

C. An x-ray scan reveals degenerative changes beginning at the first metatarsophalangeal joint bilaterally on November 16, 2009. [@ 1501 EDT]

D. This package includes information from the off post podiatrist ultrasound on December 4, 2009 at time unknown with Dr. Becker of Atlantic Foot and Health. D2: denotes a positive test for Tinel’s sign and Pes Planus foot type and pain on weight bearing with restrictions in range of motion to include but not limited to dorsiflexion of the ankle joint with stiffness in the Achilles tendon and evidence of a valgus deformity of the right and left calcaneus. D3: discusses further in detail the limits of ROM only 30 days after the initial injury. D4: discusses in detail the ultrasound examination that revealed inflammation of bilateral proximal plantar fascia that is easily seen in both the longitudinal and transverse scans. Other interesting notes include a linear hypo echoic band of tissue with its origin at the medial plantar tuberosity of the calcaneus is noted. D4: reports the impression the ultrasound as 1. Calcaneus bursitis 2. Equinus deformity 3. Plantar fasciitis 4. Difficulty in walking 5. Foot pain 6. Calcaneal spur 7. Tenosynovitis. The tenosynovitis and accompanying foot pathologies to include calcaneal spurs and plantar fasciitis prevented me from walking and thus interfered with my job as 92 FOX (Petroleum Supply Specialist or a fueler). Therefore, it is a medical condition that required an MEB and referral to PEB prior to separation. (4 pages; D1, D2, D3, D4).

3–13. Lower extremities
The causes for referral to an MEB are as follows (see also para 3–14):
3–14. Miscellaneous conditions of the extremities
n. Tendinopathy. Any tendonitis, tenosynovitis, or tendinopathy that precludes satisfactory performance of military duties.

E. December 09, 2009 an appointment for administrative purposes states: NEEDS LOI FOR MEB (3 pages; E1, E2, E3).

F. December 10, 2009 @ 0910 EDT an appointment for administrative purposes states: LOI FOR MEB PER MAJ MACK and comments for the request of a letter of intent. Additional information regarding treatments that were utilized can be found on F3 and treatments include but are not limited to the rolling of feet on golf balls and coke colas bottles with no relief in pain. Orthotics are recommended at this time. (4 pages, F1, F2, F3, F4).

G. The next piece of evidence to injury unfitting for service prior to discharge is on February 01, 2010 @ 1420 EDT, I was given a very extensive profile, and a cane to aid in walking. The reason for this specific visit was for a profile that my chain of command would be able to follow.

H. On Feb 08, 2010: Dr. Allen Swan states the patient is unable to walk greater than 100 feet without pain or wear military issue footgear/boots, accompanied by the presence of pes planus, plantar fasciitis and tenosynovitis and calcaneal spurs, that prevented me from wearing foot gear as stated below; reasons justifying an MEB and subsequent PEB prior to separation. Please refer to evidence F for some treatments that were unsuccessful, many more treatments have been tried following this date and still with no success; such to include evidence of other unsuccessful treatments are listed but not limited to items L, N and P. This also states that custom orthotics were tried without any relief. A neurological examination revealed decreased response to tactile stimulation of both entire legs.

3–13. Lower extremities
The causes for referral to an MEB are as follows (see also para 3–14):
(2) Pes planus, when symptomatic, more than moderate, with pronation on weight bearing which prevents the wearing of military footwear, or when associated with vascular changes.
(5) Plantar fascitis or heel spur syndrome that is refractory to medical or surgical treatment, interferes with the satisfactory performance of military duties, or prevents the wearing of military footwear.

VA Schedule of Ratings

5024 Tenosynovitis. The diseases under diagnostic codes 5013 through 5024 Will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under diagnostic code 5002.

5019 Bursitis

5276 Flatfoot, acquired: Pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances: Bilateral 50

I. On February24, 2010 @ 1054 EDT the evidence supports an appointment with a case manager for the first time reviewing the above facts of calcaneus bursitis, calcaneus spur, tenosynovitis, with difficulty walking and requiring a wheelchair. (2 pages, I1, I2).

J. A PCM visit with Dr. Allen Swan states on J5: The Plan for the visit was: issue medical certificate incapacity. Temporary and P3L issued in AHLTA so the patient may join the WTU. (6 pages; J1, J2, J3, J4, J5…)

K. Item K: is an MRI report with an exam date of February 27, 2010 @ 1001 EDT. This MRI shows evidence of a sprain of the posterior talofibular ligament, with posterior joint effusion.

L. This appointment was with a Podiatrist on March 02, 2010 @ 1226 EDT. Although, this appointment is still early in the day, Fort Stewart, GA is an hour from my duty station and after the drive the bottoms of my feet were swollen and discolored. Let evidence L2: provide several more conservative treatments that were also attempted including but not limited to Extracorporal Shockwave Therapy to bilateral feet under local anesthesia but states the peripheral nerve blocks did not fully relieve the pain of the shockwave therapy. It also discusses several narcotic medications that I needed to take just too simply manage the pain. L3: shows that visual examination of the foot stating it showed abnormalities and swelling. L4: mentions the use of orthotics as use for treatment and also gives the diagnosis for Reflex Sympathetic Dystrophy. Please observe the note to the Commander of PFC Cloud that states he was originally being treated for bilateral plantar fasciitis but has since developed a Chronic Regional Pain Syndrome also known as Reflex Sympathetic Dystrophy of both feet necessitating the need for these medications. He even notes a consideration of admission at Winn if I am unable to tolerate the physical therapy so that anesthesia can administer fem-sciatic nerve blocks. My medical professionals are touching on the fact that I have been having issues with my Chain of Command since I became injured on November 4, 2009; this is evidence that my feet pathologies and accompanying mental health symptoms interfered with the performance of my duty. (5 pages, L1, L2, L3, L4, L5).

M. Visit to PCM regarding diagnosis from prior appointment on March 02, 2010. March 03, 2010 @ 1404 EDT where Dr. Swan feels that a neurological disorder would help account for the severity of my pain given the lack of other physical pathology. He also notes a probable entry into WTU. February 24, 2010, I was put in a wheelchair and unable to walk, I would have to say this more than significantly interfered with my performance of duty, I’m sure my superiors would be inclined to agree as also given my evidence by number two as that I was also discussing problems with my unit. Thus, warranting an MEB and subsequent PEB.

3–30. Neurological disorders
The causes for referral to an MEB are as follows:
Any other neurologic conditions, Traumatic Brain Injury (TBI) or other etiology, when after adequate treatment there remains residual symptoms and impairments such as persistent severe headaches, uncontrolled seizures, weakness, paralysis, or atrophy of important muscle groups, deformity, uncoordination, tremor, pain, or sensory disturbance, alteration of consciousness, speech, personality, or mental function of such a degree as to significantly interfere with performance of duty.

N. March 08, 2010 @ 0830 EDT with Michael Crowell at Physical Therapy discusses findings of a small probable bone island in the calcaneus of the left foot. Weakness of the ankles is observed along with diffuse erythema of the plantar aspect of the feet. N2: indicates a good prognosis for reduction of symptoms but does not state that these symptoms will ever be eliminated or go away. I was counseled to understand that Complex Regional Pain Syndrome also known as Reflex Sympathetic Dystrophy is a life-long disorders that affect the way your nervous system interprets the pain. It feels like I have a broken foot every day! It is my understanding these symptoms may possibly go into remission but a following flare-up is likely. N2: also indicates some treatments that had not yet been attempted until that point, including but not limited to contrast baths, weight shifting, and a TENS to the plantar surface of the feet (3 pages, N1, N2, N3).

O. Appointment with Podiatrist Major Michie on March 10, 2010 @ 1241 EDT brings it to our attention that my condition has not improved. O2: states the chief complaint as bilateral foot pain for the past five months with worsening in the past month. X-rays of the left foot on O5: show mild spurring beginning dorsally about the bilateral 1st metatarsophalangeal joints. Right foot x-rays indicate the same spurring beginning dorsally at the 1st metatarsophalangeal joints. MRI also reveals previously stated probable bone island in the calcaneus. (12 pages, O1, O2, O3, O4, O5…).

P. March 22, 2010 @ 1301 EDT with PCM shows a change in medications as directed by neurology but the visit is for severe foot pain and problems with the unit. Please take note of P3 where PCM Dr. Swan written statement indicates increasing bilateral arch pain and Achilles tendon pain for the last year; pending VERY SEVERE since December 2009. He states that we have tried many approaches to treatment without any relief in pain and discusses how the swelling increases by the day’s end. He also states at that time, that I am essentially wheelchair bound and unable to bear weight. Upon reflection of this statement, it would be extremely difficult to do my job as a 92 FOX while in a wheelchair; and this is not even touching upon the subject that I cannot perform any duties as a solider nor take a PT test. I am now unable to stand. This would qualify as loss of use below the knee bilaterally because balance and prolusion are not possible at this point. Another note to my commander can show that I was unable to perform my duties or even drive a car states that I was given a sick call slip stating the unit is responsible for all aspects of his transportation to appointments and to and from home to include loading and unloading of wheelchair. (3 pages, P1, P2, P3).

§4.40 Functional loss. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.

§4.63 Loss of use of hand or foot. Loss of use of a hand or a foot, for the purpose of special monthly compensation, will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the hand or foot, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance and propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis.

5277 Weak Foot, bilateral: A symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness: Rate the underlying condition, minimum rating 10

Q. This item regards an escort to behavioral health on April 09, 2010 @ 1247 EDT because of depression secondary to the Reflex Sympathetic Dystrophy. Sandra Barrow discusses the physical problems in short by stating that I am currently wheelchair bound due to chronic neck pain and bilateral foot pain but developing problems with the unit have brought him here. Mental issues and Reflex Sympathetic Dystrophy go hand-in-hand to the 24/7 unrelenting pain. (2 pages, Q1, Q2).

R. I was not present for this piece of evidence, as the evidence supports I was admitted to Memorial Health Hospital for bilateral foot pain.

S. The final piece of evidence is from my admission into Memorial Health Medical Center and consists of two evaluations and an EMG study. The first consultation from Dr. Greenberg on S2: indicates inability to do flexion or extension (no range of motion) of either foot and shows that an examination of the extremities shows no joint swelling or redness but muscle atrophy of both calves. S3: provides information on current bilateral diffuse hypo reflexia and disuse atrophy. Later that same day S5 reports the consultation from Dr. Woodbury with pain management where a review of system shows significant swelling of the lower extremities. S6: continues the review of system by stating that the distal calf and bilateral lower extremity are remarkable for pain. Physical Exam showed discoloration of the great toe and a slightly cooler temperature. This document also shows that deep tendon reflexes were hypoactive to absent in both lower extremities at the patella, and completely absent in the tendo-Achilles as well. S8 is the EMG interpretation. Item number three indicates isolated findings of bilaterally prolonged tibial F wave and irritability in mid gastrocs which may be caused by disuse atrophy. Reflex Sympathetic Dystrophy is a neurological condition that I developed in both of my feet. May forms of treatment were performed without success. This condition that began during military service has left me wheelchair bound since February 24, 2010 and thus this medical condition required an MEB and referral to PEB prior to separation. (8 pages, S1, S2, S3, S4, S5, …).

3–30. Neurological disorders
The causes for referral to an MEB are as follows:
Any other neurologic conditions, Traumatic Brain Injury (TBI) or other etiology, when after adequate treatment there remains residual symptoms and impairments such as persistent severe headaches, uncontrolled seizures, weakness, paralysis, or atrophy of important muscle groups, deformity, uncoordination, tremor, pain, or sensory disturbance, alteration of consciousness, speech, personality, or mental function of such a degree as to significantly interfere with performance of duty.

To conclude this letter is a request that the current DD214 be changed to reflect that I, Nicholas D. Cloud, was not separated on June 22, 2010 for an Honorable Administrative Chapter 5-17, but instead was Medically Retired at 100% with Special Monthly Compensation for the loss of use of both feet on June 22, 2010. I have been unable to walk correctly since November 2009. I have been wheelchair bound and walking less than 10 feet with pain as of February 2010. I have been unable to stand or move my ankles in dorsiflexion or plantar flexion since March 3, 2010. I have loss of weakened deep tendon reflexes beginning at the knee and absolutely zero reflex at the Achilles tendon. Originally (in November), I was given a prognosis of six months but because of the troubles with my unit while navigating the MEB process I was administratively Chaptered under 5-17 (after a six month prognosis had already passed). There has been no improvement and since discharge, which was seven months after issues were first brought to medical attention. I am unable to stand; let alone walk. I am requesting ratings under the following codes

5110: Loss of use of both feet 100% plus special monthly compensation.

§4.40 Functional loss. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.

§4.63 Loss of use of hand or foot. Loss of use of a hand or a foot, for the purpose of special monthly compensation, will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the hand or foot, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance and propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis.


Other codes of consideration to this application include but are not limited to:

Chronic Regional Pain Syndrome also known as Reflex Sympathetic Dystrophy is not currently in the VA Schedule of ratings and therefore should be rated on an analogous code that most reflects it symptoms.
8520 Paralysis of: Incomplete: Severe, with marked muscular atrophy 60 (70% to include a bilateral factor of 10%)

5277 Weak Foot, bilateral: A symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness: Rate the underlying condition, minimum rating 10

5024 Tenosynovitis. The diseases under diagnostic codes 5013 through 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under diagnostic code 5002.

5019 Bursitis

5276 Flatfoot, acquired: Pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances: Bilateral 50

Thank you for your time and consideration,



Nicholas D. Cloud










Enclosures

DD Form 129: Application for Correction of Military Record under the provisions of Title 10, U.S. Code, Section 1552 (2 pages)

Narrative Summary (8 pages)

Supporting Medical Evidence (61 pages)
 

NCloud82

PEB Forum Regular Member
To the Board of Military Corrections,

I would like to request that the current DD214 be changed to reflect that I, Nicholas D. Cloud, was not separated on June 22, 2010 for an Honorable Administrative Chapter 5-17, but instead was Medically Retired at PV1 with 100% to include Special Monthly Compensation (m) for the loss of use of both feet on June 22, 2010 under multiple conditions; complicated mostly by a neurological condition affecting the perception of pain but accompanied by many other feet pathologies. In support of this requested consideration is the basis of evidence to find that I was disabled and unsuitable for duty prior to my discharge. Each item of evidence is chronological and represented by an uppercase letter; following pages of that evidence are referenced as the uppercase letter followed by the page number of that evidence.

A. My first piece of evidence is the Social Security Determination that found me, Nicholas Dale Cloud disabled as of November 4, 2009. This means that I was found disabled for the purposes of Social Security Disability eight months prior to my Honorable Discharge under Chapter 5-17. (4 pages; A1, A2, A3, A4).

B. Evidence B suggests a Plantar Fasciitis Diagnosis: I will discuss a lot about this condition in association to my diagnosis of Reflex Sympathetic Dystrophy. Close attention must be paid to medical dates and times. Often morning appointments describe the foot as normal and with no deformities; where afternoon and evening appointments often noted by the presence of pes planus and swelling. This is to point out acquired pes planus due to military service as there is evidence after the diagnosis of numerous bilateral foot pathologies, that the foot still exhibited a normal appearance with no deformities accompanied by the presence of pain. [16 Nov 2009 @ 1350 EDT]

C. An x-ray scan reveals degenerative changes beginning at the first metatarsophalangeal joint bilaterally on November 16, 2009. [@ 1501 EDT]

D. This package includes information from the off post podiatrist ultrasound on December 4, 2009 at time unknown with Dr. Becker of Atlantic Foot and Health. D2: denotes a mild positive test for Tinel’s sign, contracture in the heel cord, and pes planus foot type and pain on weight bearing with restrictions in range of motion to include but not limited to decreased dorsiflexion of the ankle joint with stiffness in the Achilles tendon and evidence of a valgus deformity of the right and left calcaneus. D3: discusses further in detail the limits of range of motion only 30 days after the initial injury and also indicates there is a normal muscle tone; this is not the case six months later at the hospital visit. D4: discusses in detail the ultrasound examination that revealed inflammation of bilateral proximal plantar fascia that is easily seen in both the longitudinal and transverse scans. Other interesting notes include a linear hypo echoic band of tissue with its origin at the medial plantar tuberosity of the calcaneus. D4: reports the impression the ultrasound as 1. Calcaneus bursitis 2. Equinus deformity 3. Plantar fasciitis 4. Difficulty in walking 5. Foot pain 6. Calcaneal spur 7. Tenosynovitis. D4 also indicates more treatments that were tried. The tenosynovitis and accompanying foot pathologies to include calcaneal spurs and plantar fasciitis prevented me from and thus inhibited my job as 92 FOX (Petroleum Supply Specialist or a fueler). Therefore, it is a medical condition that required an MEB and referral to PEB prior to separation. (4 pages; D1, D2, D3, D4).

E. December 09, 2009 an appointment for administrative purposes states: NEEDS LOI FOR MEB (3 pages; E1, E2, E3).

F. December 10, 2009 @ 0910 EDT an appointment for administrative purposes states: LOI FOR MEB PER MAJ MACK and comments for the request of a letter of intent. Additional information regarding treatments that were utilized can be found on F3 and treatments include but are not limited to the rolling of feet on golf balls and coke colas bottles with no relief in pain. Orthotics are recommended at this time. (4 pages, F1, F2, F3, F4).

G. The next piece of evidence to injury unfitting for service prior to discharge is on February 01, 2010 @ 1420 EDT, I was given a very extensive profile, and a cane to aid in walking. The reason for this specific visit was for a profile that my chain of command would be able to follow; indicating problems with the unit and problems with job performance.

H. On Feb 08, 2010: Dr. Allen Swan states the patient is unable to walk greater than 100 feet without pain or wear military issue footgear/boots. This accompanied by the presence of pes planus, plantar fasciitis and tenosynovitis and calcaneal spurs, that prevented me from wearing foot gear as stated below are reasons justifying an MEB and subsequent PEB prior to separation. Please refer to evidence F for some treatments that were unsuccessful, many more treatments have been tried following this date and still with no success; such to include evidence of other unsuccessful treatments are listed but not limited to items L, N and P. This also states that custom orthotics were tried without any relief. A neurological examination revealed decreased response to tactile stimulation of both entire legs. Let evidence D4 indicate calcaneal bursitis and as discussed in evidence G and L problems of the performance of duty are noted.

3–13. Lower extremities
The causes for referral to an MEB are as follows (see also para 3–14):
(2) Pes planus, when symptomatic, more than moderate, with pronation on weight bearing which prevents the wearing of military footwear, or when associated with vascular changes.
(5) Plantar fasciitis or heel spur syndrome that is refractory to medical or surgical treatment, interferes with the satisfactory performance of military duties, or prevents the wearing of military footwear.
3–14. Miscellaneous conditions of the extremities
n. Tendinopathy. Any tendonitis, tenosynovitis, or tendinopathy that precludes satisfactory performance of military duties.
5024 Tenosynovitis. The diseases under diagnostic codes 5013 through 5024 Will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under diagnostic code 5002.

5019 Bursitis

I. February 24, 2010 @ 1020 EDT: A PCM visit with Dr. Allen Swan states on J5: The Plan for the visit was: issue medical certificate incapacity. Temporary and P3L issued in AHLTA so the patient may join the WTU. J4 indicates that my balance is impaired and gait and stance are abnormal. (6 pages; I1, I2, I3, I4, I5…)

J. On February24, 2010 @ 1054 EDT the evidence supports an appointment with a case manager reviewing the above facts of calcaneus bursitis, calcaneus spurs, tenosynovitis, with difficulty walking and now requiring a wheelchair. (2 pages, J1, J2).

K. Item K: is an MRI report with an exam date of February 27, 2010 @ 1001 EDT. This MRI shows evidence of a sprain of the posterior talofibular ligament, with posterior joint effusion.

L. This appointment was with a Podiatrist on March 02, 2010 @ 1226 EDT. Although, this appointment is still early in the day, Fort Stewart, GA is an hour from my duty station and after the drive the bottoms of my feet were swollen and discolored. Let evidence L2: provide several more conservative treatments that were also attempted including but not limited to Extracorporal Shockwave Therapy to bilateral feet under local anesthesia but states the peripheral nerve blocks did not fully relieve the pain of the shockwave therapy. It also discusses several narcotic medications that I needed to take just too simply manage the pain. L3: shows that visual examination of the foot stating it showed abnormalities and swelling. L4: mentions the use of orthotics as use for treatment and also gives the diagnosis for Reflex Sympathetic Dystrophy. Please observe the note to the Commander of PFC Cloud that states he was originally being treated for bilateral plantar fasciitis but has since developed a Chronic Regional Pain Syndrome also known as Reflex Sympathetic Dystrophy of both feet necessitating the need for these medications. He even notes a consideration of admission at Winn if I am unable to tolerate the physical therapy so that anesthesia can administer fem-sciatic nerve blocks. My medical professionals are touching on the fact that I have been having issues with my Chain of Command since I became injured on November 4, 2009; this is evidence that my feet pathologies and accompanying mental health symptoms interfered with the performance of my duty. (5 pages, L1, L2, L3, L4, L5).

M. Visit to PCM regarding diagnosis from prior appointment on March 02, 2010. This appointment is on March 03, 2010 @ 1404 EDT where Dr. Swan feels that a neurological disorder would help account for the severity of my pain given the lack of other physical pathology. He also notes a probable entry into WTU. Balance is noted as impaired and gait and stance are abnormal. February 24, 2010, I was put in a wheelchair and unable to walk, I would have to say this more than significantly interfered with my performance of duty, I’m sure my superiors would be inclined to agree as also given my evidence by number two as that I was also discussing problems with my unit. Thus, warranting an MEB and subsequent PEB.

3–30. Neurological disorders
The causes for referral to an MEB are as follows:
Any other neurologic conditions, Traumatic Brain Injury (TBI) or other etiology, when after adequate treatment there remains residual symptoms and impairments such as persistent severe headaches, uncontrolled seizures, weakness, paralysis, or atrophy of important muscle groups, deformity, uncoordination, tremor, pain, or sensory disturbance, alteration of consciousness, speech, personality, or mental function of such a degree as to significantly interfere with performance of duty.

5276 Flatfoot, acquired: Pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances: Bilateral 50

There currently isn’t a code in the VA Schedule of Ratings for Chronic Regional Pain Syndrome but as discussed later with the marked atrophy, I would request rating under
8520 Paralysis of: Incomplete: Severe, with marked muscular atrophy 60 (70% to include a bilateral factor of 10%) to most reflect the symptoms of my Reflex Sympathetic Dystrophy. It is clear that evidence prior shows performance interference.
Evidence of atrophy is not present until evidence S on June 11, 2010 this is prior to administrative discharge on June 22, 2010.

N. March 08, 2010 @ 0830 EDT with Michael Crowell at Physical Therapy discusses findings of a small probable bone island in the calcaneus of the left foot. Weakness of the ankles is observed along with diffuse erythema of the plantar aspect of the feet. N1 also indicates: no deformity of the foot. If my feet are not swollen, I do not have pes planus, when my feet are weight bearing they swell my feet to the point of absent arches or flat feet also known as pes planus Again, the earlier in the day the less swelling and my feet are absent pes planus; making this acquired during service. N2: indicates a good prognosis for reduction of symptoms but does not state that these symptoms will ever be eliminated or go away. I was counseled to understand that Complex Regional Pain Syndrome also known as Reflex Sympathetic Dystrophy is a life-long disorders that affect the way your nervous system interprets the pain. It feels like I have two broken feet every day! It is my understanding these symptoms may possibly go into remission but a following flare-up is likely. N2: also indicates some treatments that had not yet been attempted until that point, including but not limited to contrast baths, weight shifting, and a TENS to the plantar surface of the feet (3 pages, N1, N2, N3).

5277 Weak Foot, bilateral: A symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness: Rate the underlying condition, minimum rating 10

O. Appointment with Podiatrist Major Michie on March 10, 2010 @ 1241 EDT brings it to our attention that my condition has not improved. O2: states the chief complaint as bilateral foot pain for the past five months with worsening in the past month. X-rays of the left foot on O5: show mild spurring beginning dorsally about the bilateral 1st metatarsophalangeal joints. Right foot x-rays indicate the same spurring beginning dorsally at the 1st metatarsophalangeal joints. MRI also reveals previously stated probable bone island in the calcaneus. (12 pages, O1, O2, O3, O4, O5…).

P. March 22, 2010 @ 1301 EDT with PCM shows a change in medications as directed by neurology but the visit is for severe foot pain and problems with the unit. Please take note of P3 where PCM Dr. Swan written statement indicates increasing bilateral arch pain and Achilles tendon pain for the last year; pending VERY SEVERE since December 2009. He states that we have tried many approaches to treatment without any relief in pain and discusses how the swelling increases by the day’s end. He also states at that time, that I am essentially wheelchair bound and unable to bear weight. Upon reflection of this statement, it would be extremely difficult to do my job as a 92 FOX while in a wheelchair; and this is not even touching upon the subject that I cannot perform any duties as a solider nor take a PT test. I am now unable to stand or bear weight! This would qualify as loss of use below the knee bilaterally because balance and prolusion are not possible at this point. Evidence S the hospital visit will discuss the absence of range of motion in the foot as of June 11, 2010. To show this was also interfering with my duty, another note to my commander can show that I was unable to perform my duties or even drive a car; as stated by the fact that I was given a sick call slip asserting the unit is responsible for all aspects of his transportation to appointments and to and from home to include loading and unloading of wheelchair. Showing again that problems with the unit have prevented me from appropriate medical care and that these problems have interfered with my job performance. (3 pages, P1, P2, P3).

Q. This item regards an escort to behavioral health on April 09, 2010 @ 1247 EDT because of depression secondary to the Reflex Sympathetic Dystrophy. Sandra Barrow discusses the physical problems in short by stating that I am currently wheelchair bound due to chronic neck pain and bilateral foot pain but developing problems with the unit have brought him here. Mental issues and Reflex Sympathetic Dystrophy go hand-in-hand to the 24/7 unrelenting pain. (2 pages, Q1, Q2).

R. I was not present for this piece of evidence, as the evidence supports I was admitted to Memorial Health Hospital for bilateral foot pain.

S. June 11, 2010: The final piece of evidence is from my admission into Memorial Health Medical Center and consists of two evaluations and an EMG study. The first consultation from Dr. Greenberg on S2: indicates inability to do flexion or extension (no range of motion) of either foot and shows that an examination of the extremities shows no joint swelling or redness but states muscle atrophy of both calves is present. Please note in S3: provides information on current bilateral diffuse hypo reflexia and disuse atrophy. Later that same day S5 reports the consultation from Dr. Woodbury with pain management where a review of system shows significant swelling of the lower extremities. S6: continues the review of system by stating that the distal calf and bilateral lower extremity are remarkable for pain. Physical Exam showed discoloration of the great toe and a slightly cooler temperature. This document also shows that deep tendon reflexes were hypoactive to absent in both lower extremities at the patella, and completely absent in the tendo-Achilles as well. S8 is the EMG interpretation. Item number three indicates isolated findings of bilaterally prolonged tibial F wave and irritability in mid gastrocs which may be caused by disuse atrophy. Reflex Sympathetic Dystrophy is a neurological condition that I developed in both of my feet. May forms of treatment were performed without success. This condition that began during military service has left me wheelchair bound since February 24, 2010 and thus these pathologies required an MEB and referral to PEB prior to separation. This only enforces my case for loss of use of both feet. Item P indicates that I am unable to bear weight. Item S2 indicates the inability to perform dorsiflexion and plantar flexion of the foot (extension and flexion of the foot) which would be responsible for propulsion and balance; atrophy is medically present as of this point and has progressively continued since my discharge. (8 pages, S1, S2, S3, S4, S5, …).

3–13. Lower extremities
The causes for referral to an MEB are as follows (see also para 3–14):
d. Joint ranges of motion (ROM). ROM that does not equal or exceed the measurements listed below. Measurements should be made with a goniometer (a bubble goniometer/inclinometer is also acceptable) and conform to the methods illustrated and described in the VASRD.
(3) Ankle—dorsiflexion to 10 degrees or planter flexion to 10 degrees

3–30. Neurological disorders
The causes for referral to an MEB are as follows:
Any other neurologic conditions, Traumatic Brain Injury (TBI) or other etiology, when after adequate treatment there remains residual symptoms and impairments such as persistent severe headaches, uncontrolled seizures, weakness, paralysis, or atrophy of important muscle groups, deformity, uncoordination, tremor, pain, or sensory disturbance, alteration of consciousness, speech, personality, or mental function of such a degree as to significantly interfere with performance of duty.

§4.40 Functional loss. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.

§4.63 Loss of use of hand or foot. Loss of use of a hand or a foot, for the purpose of special monthly compensation, will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the hand or foot, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance and propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis.

To conclude this letter is a request that the current DD214 be changed to reflect that I, Nicholas D. Cloud, was not separated on June 22, 2010 for an Honorable Administrative Chapter 5-17, but instead was Medically Retired at 100% with Special Monthly Compensation (m) for the loss of use of both feet on June 22, 2010. I have been unable to walk correctly since November 2009. I have been wheelchair bound as of February 24, 2010. I have been medically examined as unable to stand or move my ankles in dorsiflexion or plantar flexion. I have loss or weakened deep tendon reflex beginning at the knee and absolutely zero reflexes at the Achilles tendon. My original prognosis was not accurate (as that time, had already passed and I am still in a wheelchair); problems with my unit while navigating the MEB process led to an administrative Chapter under 5-17 before a warranted MEB and PEB could be performed. I am unable to stand; let alone walk. If I had lost my legs and did have amputation stumps, I would at least be able to stand and possible take a few steps with the use of prosthetics. BUT With Chronic Regional Pain Syndrome my feet are always hurting and this is why I am requesting ratings under the following codes

5110: Loss of use of both feet 100% plus special monthly compensation.
§4.40 Functional loss. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.

§4.63 Loss of use of hand or foot. Loss of use of a hand or a foot, for the purpose of special monthly compensation, will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the hand or foot, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance and propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis.

Other codes of consideration to this application include but are not limited to:

Chronic Regional Pain Syndrome also known as Reflex Sympathetic Dystrophy is not currently in the VA Schedule of ratings and therefore should be rated on an analogous code that most reflects it symptoms.

8520 Paralysis of: Incomplete: Severe, with marked muscular atrophy 60 (70% to include a bilateral factor of 10%)

5277 Weak Foot, bilateral: A symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness: Rate the underlying condition, minimum rating 10

5024 Tenosynovitis. The diseases under diagnostic codes 5013 through 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under diagnostic code 5002.

5019 Bursitis

5276 Flatfoot, acquired: Pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances: Bilateral 50


Summary: Let the evidence show that my many feet pathologies never began to get better and progressively got worse due to my Active Duty Military Service. I was put in a wheelchair and still progressively got worse to a degree where I became unable to bear weight, marked atrophy in both calves accompanied with a positive EMG for disuse atrophy without any possible dorsiflexion or plantar flexion of the feet.

Thank you for your time and consideration,



Nicholas D. Cloud





















Enclosures:

DD Form 129: Application for Correction of Military Record under the provisions of Title 10, U.S. Code, Section 1552 (2 pages)

Narrative Summary (9 pages)

Supporting Medical Evidence (61 pages)
 

NCloud82

PEB Forum Regular Member
With the narrative at hand, and I am not getting my hopes up, do I have a strong case?

Can I expect the BCMR to deny this based on the request for SMC?

Can the BCMR change the request for SMC based on my final statement about other codes in consideration to this application; so that it isn't just a flat out denial if they feel SMC it is not warranted?

Once submitted and recieved how long can I expect to wait before I recieve word on decision (approval or denial)?

Can I expect to be examined? :)

If on the off chance this would be sufficient (which you know, don't get your hopes up) what can I expect from the outcome?

Upon denial what would be my next step?

Thank you all very much for your time!
 

LongerHorn

PEB Forum Regular Member
JMO but, your best argument is likely process, you were not given the appropriate process to adjudicate your seperation. The fit but unsuitable portion should raise questions immediately.

That being said, I don't think anyone can answer your question, and I would be weary of anyone who said they could, but stay strong.
 

NCloud82

PEB Forum Regular Member
I guess my question isn't stated to clearly, if the ABCMR feels this is not enough to warrant smc, can they decide to grant partially favorable based on the evidence provided or would they just flat out deny it?
 

NCloud82

PEB Forum Regular Member
I wanted to keep everyone updated:

The BCMR acknowledged receipt of application in May.. No advisory opinions as of yet.. VA claim came back with 80%. We hired a lawyer and selected the DRO process. I will continue updates.
 
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