RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: MARINE CORPS

CASE NUMBER: PD1101042 DATE OF PLACEMENT ON TDRL: 20060331

BOARD DATE: 20120809 Date of Permanent SEPARATION: 20080111

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty LCpl/E-3 (0600/Basic Communications), medically separated for right eye visual field deficit. Blurred vision in the right eye began abruptly in 2005 and worsened over the course of a few months. The CI did not improve adequately with treatment to meet the physical requirements of his Rating. He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB). The MEB forwarded anterior ischemic optic neuropathy in the right eye and visual field deficit, right eye, as medically unacceptable IAW SECNAVINST 1850.4E. No other conditions were forwarded on the MEB submission. The Physical Evaluation Board (PEB) adjudicated the visual field deficit right eye condition as unfitting, rated 30%, and placed the CI on the Temporary Disability Retired List (TDRL). He underwent a final evaluation after approximately 2 years on TDRL. At that time the PEB determined the condition was stable and adjudicated visual field deficit right eye as permanently unfitting, rated 10%, and presumed ocular tuberculosis (TB) and anterior ischemic optic neuropathy in the right eye as related Category II diagnoses. The CI made no appeals, and was medically separated with a 10% disability rating.

CI CONTENTION: “I feel that my vision has deteriorated and may continue to. I now have a permanent disability which has left me unable to serve in the Military. I sometimes feel anxious and depressed not knowing what may happen if I lose further vision.”

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The unfitting right eye and related Category II conditions meet the criteria prescribed in DoDI 6040.44 for Board purview, and are accordingly addressed below. The other requested conditions of anxiety and depression are not within the Board’s purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Naval Records (BCNR).

TDRL RATING COMPARISON:

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. It is a fact, however, that the Disability Evaluation System (DES) has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation. This role and authority is granted by Congress to the Department of Veterans’ Affairs (DVA). The Board’s relevant recommendations are assigned in assessment of the permanent separation and rating determination, and the TDRL rating assignment is not considered a benchmark. It is recognized, in fact, that PEB’s across the services sometimes apply an overly generous initial rating in order to meet the DoD requirement of 30% disability for placement on TDRL. This is in the member’s best interest at the time and does not mean that a final lower rating is unfair, even if perceived as incongruent with subjective severity from one rating to the next. Thus the sole basis for the Board’s recommendation is the optimal VASRD rating for disability at the time the CI is permanently separated.

Right Eye Condition. The CI first experienced painless loss of vision in the outer lower quadrant of his right eye in April 2005. At first the visual field defect was intermittent, but over the next few months it became continuous and increased in size. After a complete evaluation that included laboratory testing, radiologic studies and specialized ophthalmologic testing the diagnosis of anterior ischemic optic neuropathy was made. Although it was considered unlikely that TB was the cause of the eye condition, he received a course of anti-TB treatment. While the expected visual field improvement after treatment for TB (4 drug regimen) did not occur, the infectious disease specialist continued to call the condition “presumed ocular TB.” The pre-TDRL narrative summary (NARSUM) examiner, on 23 November 2005, noted that the central visual acuity in each eye was 20/15 and that the left eye had no visual field deficits. At the time the CI was placed on the TDRL, the PEB rated the visual field deficit condition at 30% under a combination VASRD code reflecting that an impairment of visual field (code 6080) was possibly due to TB (6010). The concurrent VA decision deemed the condition not service-connected because the CI failed to show for an ophthalmology exam, and service treatment record (STR) were not available for review. Under VASRD code 6070 (impairment of central visual acuity), complete blindness in the one eye with visual acuity in the good eye of 20/40 or better justifies a 30% rating and there was no bilateral visual field deficits for higher rating IAW 6070 coding. However, the Board considered the 6010 coding pathway (TB of the eye) used by the PEB. Under this code, §4.88c requires that for a year after date of inactivity following active TB, a rating of 100% should be applied. Thereafter, residuals are rated under the specific body system affected. Board members agreed that the PEB’s use of the 6010 code, accompanied by the related Category II diagnosis of presumed ocular TB, should not be disregarded in this case. Therefore, the Board recommends a 100% rating for the right eye condition at the time of initial placement on TDRL IAW the special VASRD provisions of §4.88c and code 6010.

Next the Board turned its attention to a permanent rating at the time of removal from TDRL. While an interim ophthalmologic exam showed no change from his pre-TDRL assessments, the final TDRL re-evaluation NARSUM reported that the CI, who was working as a truck driver, had experienced no change in his visual function or symptoms. Examination revealed visual acuity of 20/20 in each eye. Intraocular pressures, color testing and stereoscopic testing were normal. The right optic nerve displayed some pallor compared to the left. Visual field testing revealed an inferior and temporal visual field defect in the right eye that was unchanged from the previous examination. There was constriction to approximately 30 degrees above the horizontal midline and to 10 degrees below the horizontal midline in the right eye. The final PEB’s 10% rating kept the same 6010-6080 code as used previously. Based on STRs that became available, the VA also assigned a 10% rating under the 6079-6080 code. In determining a rating for this condition, §4.76 requires computation of an average visual field loss under the 6080 code. Utilizing the visual field chart in evidence at the TDRL reevaluation exam, computation IAW §4.76 reveals an average concentric contraction to 22.5 degrees, virtually identical to the 22 degree measurement calculated by the VA in its rating decision. Under the 6080 code unilateral concentric contraction to 30 degrees, but not to 15 degrees, warrants a 10% rating. Alternatively, this degree of contraction allows for rating using a corresponding visual acuity of 20/100. Under this pathway, a 10% rating is justified under the 6079 code. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB’s permanent separation adjudication for the right eye condition.

BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. In the matter of the right eye visual field condition, the Board unanimously recommends a rating of 100% during the prescribed period of TDRL; and a permanent disability rating of 10%, coded 6010-6080 IAW VASRD §4.88c and §4.84a. There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows; with a disability rating of 100% for the prescribed period of TDRL and a final disability rating of 10%, effective as of the date of his prior medical separation:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 2011106, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

President

Physical Disability Board of Review

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS

COMMANDER, NAVY PERSONNEL COMMAND

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44

(b) PDBR ltr dtd 26 Jul 12

(c) PDBR ltr dtd 22 Aug 12

(d) PDBR ltr dtd 8 Aug 12

1. Pursuant to reference (a) I approve the recommendations of the PDBR set forth in references (b) through (d).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

a. former USMC: Placement on the Permanent Disability Retired List with a 50 percent disability rating effective 15 April 2006.

b. former USMC: Placement on the Temporary Disability Retired List for the period 31 March 2006 through 10 January 2008 with a disability rating of 100 percent (increased from 30 percent) and final separation on 11 January 2008 with a disability rating of 10 percent with entitlement to disability severance pay.

c. former USN : Disability separation with entitlement to disability severance pay with a final disability rating of 20 percent (increased from 10 percent) effective 21 November 2001.

3. Please ensure all necessary actions are taken to implement these decisions, included the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are completed.

Assistant General Counsel

(Manpower & Reserve Affairs)