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AF | PDBR | CY2013 | PD-2013-02321
Original file (PD-2013-02321.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX     CASE: PD-2013-02321
BRANCH OF SERVICE: Army  BOARD DATE: 20150108
SEPARATION DATE: 20041028


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (11B/Infantryman) medically separated for complications of a left eye injury, which could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). He was issued a permanent E3 profile and referred for a Medical Evaluation Board (MEB). The eye conditions, characterized as “mild traumatic cataract,” “decreased vision,” and “cystoid macular edema” of the left eye, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB combined the MEB diagnoses as a single unfitting condition, rated 10% under criteria of the VA Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “Separation due to the eye injury did not account for the residuals of scarring, photophobia, painful eye, and floaters. The eye was not full [sic] healed at time of separation and my vision has continued to deteriorate. My ability to focus, visual acuity and field of vision has continued to suffer. I was not allowed the opportunity to pursue a career in law enforcement after discharge due to my eye damage. In addition this does not consider the additional factors, which were VA service connected and compensable such as TBI [traumatic brain injury], debilitating migraines and PTSD [posttraumatic stress disorder].”


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting eye conditions is addressed below. The requested TBI, migraine, and PTSD conditions were not identified by the MEB or PEB; and are not within the DoDI 6040.44 defined purview of the Board. Those or any conditions or contention not requested in this application, remain eligible for future consideration by the Board for the Correction of Military Records (BCMR).


RATING COMPARISON :

Service IPEB – Dated 20040910
 VA (2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
RPG Fragment Injury Left Eye ... 6027-6079 10% Penetrating Injury Left Eye 6080 20% 20041218
Other x 0 (Not in Scope)
 Other x 4
Combined: 10%
 Combined: 40%
Derived from VA Rating Decision (VA RD ) dated 20050209 ( most proximate to date of separation [ DOS ] ). Original VARD dated 20050119 deferred the eye rating.


ANALYSIS SUMMARY: The Board acknowledges the CI’s assertions that his disability disposition was rushed and unfair. It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BMCR. The Board also acknowledges the CI’s information regarding the occupational impediments due to his service-connected condition; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.

Left Eye Condition. The service treatment record (STR) corroborates the history and clinical course as elaborated in the narrative summary (NARSUM). The CI sustained a penetrating shrapnel injury to the left eye from a rocket propelled grenade in Iraq on 5 November 2003. He underwent a staged evacuation to a specialty center in CONUS for ultimate surgical removal of the fragment on 26 November 2003 (11 months prior to separation). The STR reflects an uncomplicated recovery but residual visual complaints which were not compatible with his infantry MOS. The NARSUM (hereafter referring to the ophthalmology addendum) was conducted on 23 January 2004 (9 months prior to separation) and documented “decreased vision while reading and ... sensitivity to light” as the current symptoms. The physical findings were: “mild cornea scarring [the clear window at the front surface of the eye];” some isolated small hemorrhages (temporal aspect) and atrophy of the iris (pigmented ring in the front of the eye); some “minor” damage to the lens (any opacity in the lens is termed cataract); and, some macular changes (central vision receptor in back of the eye); the latter representing resolved edema, but with possible contribution to permanent impairment of vision. All other elements of the eye exam (vitreous, retina, intraocular pressure) were normal. The visual acuity was 20/15 OD (right eye) and 20/40 (20/150 uncorrected) OS (left eye). Visual fields were normal by confrontational testing, as corroborated in previous STR entries. There were no subjective blind spots reported, but the commander’s statement noted “loss of prefrial [peripheral] and depth perception”; and, decreased peripheral vision was recorded at the MEB examination on 27 July 2004. No formal visual field testing by the service is in evidence.

A VA Compensation and Pension (C&P) ophthalmology examination was conducted on 18 December 2004 (2 months after separation); and, the examiner documented, “the patient feels that he has had permanent vision loss from the injury. He states that his vision in the left eye is now limited, his depth perception is off, and his peripheral vision is damaged. He is also very photophobic [light sensitive] since the injury.” The physical findings were equivalent to those documented by the MEB ophthalmologist, further noting a left pupil irregularity (from the iris damage) which had not been commented on in the NARSUM (although noted in some STR entries). Recorded visual acuity was 20/20 OD and 20/40 OS (20/400 uncorrected). Formal visual field testing (Goldmann) documented average contraction (remaining field) of 58 degrees OD (right eye) and 53 degrees OS (left eye), the results of which were within the lowest range of ratable deficits. The reader is referred to VASRD §4.77 (visual fields) for an explanation of these values; and, it is noted that §4.77 specifies the use of “devices with simulated kinetic Goldmann testing capability” for rating.

The Board directed attention to its rating recommendation based on the above evidence. Members first discussed whether separate ratings could be justified based on the multiple eye diagnoses in evidence without violation of VASRD §4.14 (avoidance of pyramiding). All coding choices under VASRD §4.79, which might apply to this case, default to rating criteria based on impairment of visual acuity and/or visual field. The PEB’s 10% rating under 6027-6079 (cataract rated for impairment of central visual acuity) initially seemed to be compliant with §4.79 criteria for rating impairment of visual acuity based on the MEB (and VA) evidence, but actually relied on the use of corrected 20/50 OS visual acuity for a rating of 10%, which was a pre-operative recording rather than the 20/40 OS recordings proximate to separation, which would have rated 0%. The VA’s 20% rating under 6080 (visual field defects), however, does not appear to comport with the §4.79 criteria for 6080 based on the C&P visual field evidence. The rating decision referenced “bilateral impairment of visual field;” and, the 6080 rating for “remaining field of 46 to 60 degrees” is 10% for both unilateral and bilateral involvement. It is possible that the VA rater combined 10% ratings for each eye to achieve 20% (not clear from the rating decision); but, that approach would not be appropriate, given the dependency on the non-service connected (and not in Board scope) right eye. It should be noted, however, that §4.77 (c) specifies that “when both decreased visual acuity and visual field defect are present in one or both eyes ... separately evaluate the visual acuity and visual field defect ... and combine them under the provisions of §4.25 [VASRD combined ratings table].” The Board members reviewed and deliberated the most appropriate coding options to be in full compliance with the VASRD §4.14, §4.25, §4.77 (c), and §4.79. Members deliberated whether a 10% or a 20% rating recommendation could be supported based on combining the impaired visual field (applying evidence from the after separation VA C&P examiner) and the impaired visual acuity (from the MEB and VA). The applicable code for the impaired left visual field is 6080 with a rating of 10% and remains so even using the code 6080 option of 20/50 bilaterally by applying code 6066; and, the applicable code for the left impaired visual acuity (in the presence of the CI’s cataract) of 20/40 OS and 20/20 OD is 6066 with a rating of 0%. Therefore, the combined applicable rating is 10%. No additional route to a higher rating was found even with consideration of photophobia, which by itself is not ratable using code 6036 in the absence of status post cornea transplant with additional symptoms of pain and glare sensitivity at the time of separation. After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 10% rating for the left eye condition, combined IAW §4.77 (c) using codes 6080 and 6066.


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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the left eye condition, the Board unanimously recommends a disability rating of 10% (combined 10% under code 6080 and 0% under code 6066) IAW VASRD §4.75, §4.76, §4.77, and §4.79. 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Penetrating Injury Left Eye with Visual Field Defect 6080 10%
Penetrating Injury Left Eye with Loss of Visual Acuity 6066 0%
COMBINED 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131005, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record


                          
XXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

SAMR-RB                                                                         

MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXX, AR20150007448 (PD201302321)
I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application.
This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl                                                  XXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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